Jose H. Magana-Torres v. Larry Small
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/16/2011 RECOMMENDING that the 16 motion to dismiss be granted and this action be dismissed w/out prejudice. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSE H. MAGANA-TORRES,
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Petitioner,
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vs.
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No. CIV-S-10-2712 MCE EFB (TEMP) P
LARRY SMALL,
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Respondent.
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FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel in this case, has filed an
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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
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Respondent has filed a motion to consolidate or, in the alternative, to dismiss it. Respondent
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argues that this petition is duplicative of the petition pending in Case No. CIV S-10-2669 WBS
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CMK, filed September 30, 2010, wherein petitioner challenges his state court conviction through
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the assistance of his counsel. Petitioner has not responded to the motion to consolidate or
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dismiss the instant petition.
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A suit is duplicative if the “claims, parties and available relief do not significantly differ
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between the two actions.” Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal.1999) (citation
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omitted). “When a complaint involving the same parties and issues has already been filed in [a]
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federal district court, the court has discretion to abate or dismiss the second action.” Welch v.
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Board of Prison Terms, 2008 WL 4000474 at *2 (E.D. Cal.) (citation omitted). The court finds
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that dismissal of the second action is the proper course here.
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IT IS HEREBY RECOMMENDED that the motion to dismiss, Dckt. No. 16, be granted
and this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In
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his objections petitioner may address whether a certificate of appealability should issue in the
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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
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enters a final order adverse to the applicant).
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DATED: May 16, 2011.
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