Greene v. CA Republic Sacramento et al

Filing 9

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/28/2015 VACATING the previously issued 4 findings and recommendations; and GRANTING petitioner's 5 , 6 motion to proceed ifp; AND FURTHER RECOMMENDING that the instant action be dismissed without prejudice, as duplicative of the earlier filed case no. 2:14-cv-1826 JAM AC P. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVELLOUS AFRIKAN WARRIOR
GREENE,
Petitioner,

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No. 2:14-cv-2959 JAM AC P

ORDER AND FINDINGS &
RECOMMENDATIONS

v.
CA REPUBLIC SACRAMENTO,
Respondents.

Petitioner is a state prisoner proceeding pro se who challenges his 2002 conviction in the
Sacramento County Superior Court.
On February 12, 2015, the previously assigned Magistrate Judge issued Findings and

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Recommendations recommending this case be dismissed for petitioner’s failure to comply with

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the court’s order that he file an in forma pauperis affidavit or pay the filing fee. ECF No. 4.

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Petitioner submitted a copy of his prison trust account statement on February 18, 2015 (ECF No.

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5) and a second copy was filed by the court on March 16, 2015 (ECF No. 6). As the result of a

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related case order, this case was reassigned to the undersigned and District Judge Mendez on May

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14, 2015. ECF No. 7. Although petitioner has failed to file a complete application to proceed in

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forma pauperis, he has filed copies of his prison trust account statement which show he is unable

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to afford the costs of suit. ECF Nos. 5, 6. Petitioner will be permitted to proceed in forma

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pauperis and the undersigned will vacate the previously issued Findings and Recommendations

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(ECF No. 4). The court will instead recommend that the petition be dismissed as duplicative.
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The court’s records reveal1 that petitioner filed two nearly identical petitions for writs of

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habeas corpus pursuant to 28 U.S.C. § 2254. The cases were initiated approximately four and a

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half months apart in this court. The cases are the earlier filed Greene v. Pelican Bay State Prison,

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Case No. 2:14-cv-01826 JAM AC P, and this case, Greene v. CA Republic Sacramento, Case No.

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2:14-cv-02959 JAM AC P (previously 2:14-cv-02959 WBS KJN P). Both petitions challenge

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plaintiff’s 2002 conviction and allege that the trial judge was biased and coerced plaintiff into

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taking a “People v. West plea” outside the presence of his attorney; that he was sexually assaulted

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while in prison; that he was medicated and not competent; and that he was innocent of the

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charges. Compare ECF No. 1 with August 4, 2014 Petition, Greene v. Pelican Bay State Prison,

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Case No. 2:14-cv-01826 JAM AC P. In Greene v. Pelican Bay State Prison, the undersigned

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directed respondents to file a response to the petition and a motion to dismiss is currently

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pending. The petition in this case has yet to be screened or served. For these reasons, the court

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will recommend that the instant petition be dismissed as duplicative.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The previously issued Findings and Recommendations (ECF No. 4) are vacated; and

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2. Petitioner’s motion to proceed in forma pauperis (ECF Nos. 5, 6) is granted.

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IT IS FURTHER RECOMMENDED that:

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1. The instant action be dismissed without prejudice, because it is duplicative of the

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earlier filed Greene v. Pelican Bay State Prison, Case No. 2:14-cv-01826 JAM AC P.

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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, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 28, 2015

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