Chambers v. Sherman
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition in this action be dismissed as duplicative of the petition in case no. 1:18-cv-00092-DAD-SKO (HC); this action be administratively closed ; referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 03/7/18. ORDER WITHDRAWING 7 FINDINGS AND RECOMMENDATIONS. ( Objections to F&R due by 3/26/2018) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EDWIN JAMES CHAMBERS,
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Petitioner,
Case No. 1:17-cv-01747-LJO-MJS (HC)
ORDER WITHDRAWING FINDINGS AND
RECOMMENDATION
v.
(ECF NO. 7)
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STU SHERMAN, Warden,
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Respondent.
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FINDINGS AND RECOMMENDATION TO
DISMISS PETITION AS DUPLICATIVE
FOURTEEN (14) DAY OBJECTION
DEADLINE
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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus
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under 28 U.S.C. § 2254. On December 29, 2017, the Court conducted an initial review of
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the petition and determined that Petitioner’s first and only stated ground for relief was
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illegible and unintelligible. Accordingly, the Court was unable to determine whether
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Petitioner is entitled to relief, and Petitioner was ordered to file an amended, legible
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petition within thirty days.
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The thirty day deadline passed without Petitioner either filing an amended petition
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in this action or seeking an extension of time to do so. Accordingly, on February 15,
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2018, the undersigned recommended dismissal of the petition without prejudice on the
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ground that Petitioner failed to obey the Court’s order requiring him to file a legible,
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amended complaint. (ECF No. 7.)
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Petitioner filed objections stating that he had, in fact, filed a legible petition. (ECF
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No. 8.) A review of the Court’s docket reflects that Petitioner’s amended petition was
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mistakenly opened as a new action, Chambers v. Sherman, No. 1:18-cv-00092-DAD-
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SKO (HC). Respondent since has been ordered to respond in that action. (ECF No. 5 in
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No. 1:18-cv-00092-DAD-SKO.) Given that Petitioner complied with the Court’s order
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requiring him to file a legible petition, the undersigned will withdraw his prior findings and
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recommendation.
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However, litigants “generally have ‘no right to maintain two separate actions
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involving the same subject matter at the same time in the same court and against the
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same defendant.’” Adams v. California Dept. of Health Services, 487 F.3d 684, 688 (9th
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Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.1977) (en banc)).
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“After weighing the equities of the case, the district court may exercise its discretion to
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dismiss a duplicative later-filed action, to stay that action pending resolution of the
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previously filed action, to enjoin the parties from proceeding with it, or to consolidate both
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actions.” Id.
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Additionally, 28 U.S.C. § 2244(b) limits the number of separate habeas actions
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that a state prisoner may bring arising out of the same state court conviction and/or
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sentence. When a pro se petitioner files a second Section 2254 habeas petition
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challenging a particular state conviction before the district court completes its
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adjudication of his earlier Section 2254 habeas petition stemming from the same state
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court criminal case, the district court should construe the second petition as a motion to
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amend the earlier-filed petition. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (so
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holding and further holding that the court thereafter has the discretion to determine
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whether to grant leave to amend consistent with Fed. R. Civ. P. 15); see also Goodrum
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v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016) (reiterating that Woods is “the law of our
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circuit”).
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Here, Case Nos. 1:17-cv-01747 and 1:18-cv-00092 arise out of the same state
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court criminal case. The petitions are essentially identical, with the exception that the
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petition in 1:18-cv-00092 contains a legible description of Petitioner’s claim and, as
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noted, the petition in 1:17-cv-01747 does not. In such circumstances, the petition in
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1:18-cv-00092 should be filed as an amended petition in the instant case, and 1:18-cv-
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00092 should be administratively closed. Here, however, 1:18-cv-00092 contains the
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only legible petition filed in either action, and it has progressed further than the instant
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case in that Respondent has been directed to respond to it. Additionally, the
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undersigned has reviewed the petition and foresees no timeliness issues arising from
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Petitioner proceeding on the later-filed petition. Accordingly, the undersigned will
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recommend that the instant petition be dismissed as duplicative, and that this matter be
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administratively closed. Petitioner should continue to pursue his petition in Case No.
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1:18-cv-00092.
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Based on the foregoing, the Court’s prior findings and recommendation (ECF No.
7) are HEREBY WITHDRAWN.
Additionally, it is HEREBY RECOMMENDED that:
1. The petition in this action be dismissed as duplicative of the petition in
Case No. 1:18-cv-00092-DAD-SKO (HC); and
2. This action be administratively closed.
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The findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with the findings and recommendations, any party
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may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any reply to the objections shall be served and filed within fourteen
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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
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F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
March 7, 2018
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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