Smith v. Michigan Parole and Commutation Board

Filing 3

OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis. Signed by District Judge Thomas L. Ludington. (KWin)

Case 1:20-cv-10649-TLL-EAS ECF No. 3 filed 05/05/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DERRICK LEE SMITH,
Petitioner,

Case Number: 1:20-cv-10649
Honorable Thomas L. Ludington

v.
MICHIGAN PAROLE AND
COMMUTATIONS BOARD,
Respondent.
____________________________________/
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner Derrick Lee Smith, a Michigan prisoner, has filed a writ of habeas corpus
under 28 U.S.C. § 2254. He seeks habeas relief on the ground that former Michigan
Governor Rick Snyder commuted his sentence on February 3, 2019, but the Michigan
Parole and Commutations Board has failed to schedule a public hearing. He seeks
immediate release.
In 2008, Petitioner pleaded no contest in Wayne County Circuit Court to two counts
of kidnapping, Mich. Comp. Laws § 750.349, and six counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(c). He was sentenced to eight concurrent terms
of 22.5 to 75 years in prison. His convictions and sentences were affirmed on direct review.
People v. Smith, No. 294843 (Mich. Ct. App. Jan. 4, 2010), lv. den. 486 Mich. 929 (2010)
(table).

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Petitioner filed this habeas petition on March 9, 2020. He claims that in February
2019, Governor Rick Snyder commuted his sentence.1 Approximately two weeks before
filing this petition, Petitioner filed a habeas corpus petition in this District raising the same
claim raised in this petition. See Smith v. Burt, No. 2:20-cv-10465 (Roberts, J.).
“The filing of multiple federal actions arising out of the same facts is strongly
discouraged, and plaintiffs take such a course at the peril that the adjudication of one case
will have preclusive effect on the other.” Twaddle v. Diem, 200 F. App’x 435, 439 (6th
Cir. 2006). Lawsuits are duplicative if they “involve ‘nearly identical parties and issues.’”
Zide Sport Shop of Ohio v. Ed Tobergate Associates, Inc., 16 F. App’x 433, 437 (6th Cir.
2001). When faced with a duplicative suit, a federal court may exercise its discretion to
stay or dismiss the suit before it, allow both cases to proceed, or enjoin the parties from
proceeding in the other suit. Twaddle, 200 F. App’x at 438. “[S]imple dismissal of the
second suit is [a] common disposition because plaintiffs have no right to maintain two
actions on the same subject in the same court, against the same defendant at the same time.”
Id. (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 138–39 (2d Cir. 2000)).
The habeas petition in this case raises the same issue currently under consideration
in case number 2:20-cv-10465. Petitioner is not entitled to maintain two actions on the
same subject in the same court at the same time. Id.

1

The Court notes that Rick Snyder’s term as Governor of the State of Michigan ended in
2018. See https://www.michigan.gov/formergovernors/0,4584,7-212-96470---,00.html
(last accessed Apr. 3, 2020).
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Accordingly, it is ORDERED that the habeas petition in this case, ECF No. 1, is
DISMISSED.
It is further ORDERED that a certificate of appealability is DENIED under 28
U.S.C. § 2253(c)(2) because reasonable jurists would not debate the Court’s conclusion
that the petition should be dismissed without prejudice. See Slack v. McDaniel, 529 U.S.
473, 484 (2000).
It is further ORDERED that leave to proceed in forma pauperis on appeal is
DENIED because an appeal from this decision cannot be taken in good faith. See Fed. R.
App. P. 24(a).
Dated: May 5, 2020

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon Derrick Lee Smith #267009, MUSKEGON CORRECTIONAL
FACILITY, 2400 S. SHERIDAN, MUSKEGON, MI 49442 by first
class U.S. mail on May 5, 2020.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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