Henderson v. Hernadez-Covington et al

Filing 10

ORDER granting 6 Motion to Proceed IFP filed by KEITH HENDERSON, denying 5 Motion for Appointment of Counsel filed by KEITH HENDERSON, granting 2 Motion to Proceed IFP filed by KEITH HENDERSON. The instant petition is dismissed. Petitioner is also denied a certificate of appealability. Ordered by U.S. District Judge W LOUIS SANDS on 10/20/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
KEITH HENDERSON,

:
:
Petitioner
:
:
VS.
:
:
VIRGINIA M. HERNANDEZ:
COVINGTON, et. al.
:
:
Respondents
:
____________________________________

CIVIL NO. 1:14-CV-0152-WLS

ORDER
Petitioner KEITH HENDERSON has filed in this Court a habeas petition under 28 U.S.C.
§ 2254 in which he seeks to attack his October 4, 2005, conviction for “robbery to armed robbery”
in the Superior Court of Early County, Georgia.
Under Rule 4 of the Rules Governing Section 2254 Cases, district courts are required to
promptly examine every application filed and thereafter enter a summary dismissal if it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court….” Also, “[a]s part of its general power to administer its docket, a district court
may stay or dismiss a suit that is duplicative of another federal court suit.” Smith v. Ferrell, No.
09 00466 CG B, 2010 U.S. Dist. LEXIS 14738 (S. D. Ala. Feb. 4, 2010) (quoting Curtis v.
Citibank, 226 F.3d 133, 138 (2d Cir. 2000)). “[A] suit is duplicative of another suit if the parties,
issues, and available relief do not significantly differ between the two actions.” I. A. Durbin, Inc.
v. Jefferson Nat'l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986).

A review court records on the U.S. District Web PACER Docket Report reveals that
Petitioner has filed other, very similar, applications challenging the same conviction at issue here.1
One of his prior petitions is still currently pending in this Court: Henderson v. Bishop, 114-cv-128
(WLS). The instant petition will therefore be DISMISSED as duplicative.2 Petitioner’s Motions
to Proceed in forma pauperis (Doc. 2 & 6) are GRANTED only for the purpose of this dismissal;
and Petitioner’s Motion for Appointment of Counsel (Doc. 5) is DENIED.
Petitioner has no absolute entitlement to appeal this dismissal. 28 U.S.C. § 2253(c)(1).
Before he may appeal, the district court must first issue a Certificate of Appealability (“COA”).
See 28 U.S.C. § 2253(c)(1); 28 U.S.C. §2254, Rule 11(a).
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 146 L.Ed.2d 542 (2000).

Because it is

clear on the face of Petitioner’s application that this action is duplicative of one already pending in
this Court, no reasonable jurist could find that the dismissal of this petition is debatable or wrong.
Petitioner is thus DENIED a Certificate of Appealability. See 28 U.S.C. § 2253(c)(1); 28 U.S.C. §
2254, Rule 11(a). See also, Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
denial of COA before movant filed a notice of appeal). Because Petitioner is not entitled to a

1 See Henderson v. Allen, 1:14-cv-131 (WLS); Henderson v. Bishop, 114-cv-128 (WLS); Henderson v. Arington,
1:14-cv-151 (WLS).
2 The Court also finds the petition to be nonsensical. Petitioner lists the following grounds for relief: (1) “Customary
International Law Several Practices such as slavery state sponsored murders and kidnapping torture and arbitrary
detention . . .”; (2) “Assault and Battery of Fear about to harm you Plaintiff . . .”; and (3) “False imprisonment 16-5-41
longer than your time of punishments for a court date”; (4) “Rights to Equal Treatment –see [case law] upholding
district court orders directing desegregation of Alabama.” Such grounds plainly do not support a claim for habeas
relief in the district court.

COA, he is also not entitled to proceed in forma pauperis on appeal.
SO ORDERED, this 20th day of October, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, Judge
UNITED STATES DISTRICT COURT