Harris v. Capello

Filing 4

OPINION and ORDER Summarily Dismissing the Petitioner's Case. Signed by District Judge David M. Lawson. (CGre)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LARRY HARRIS, Petitioner, v. GARY J. CAPELLO, Warden, Respondent. _______________________________/ OPINION AND ORDER SUMMARILY DISMISSING THE PETITIONER'S CASE The petitioner, Larry Harris, a Michigan prisoner, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, the petitioner challenges his 2004 Wayne County, Michigan circuit court convictions for first-degree murder, Mich. Comp. Laws § 750.316, assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, for which he was sentenced to life imprisonment without the possibility of parole, a concurrent term of five to ten years imprisonment, and a consecutive term of two years imprisonment, respectively. The petitioner has already filed a habeas action challenging the same convictions with this Court, which is before another judge in this district. See Harris v. McQuiggin, Case No. 07-15219. In that case, United States District Judge Avern Cohn, upon the petitioner's motion, stayed and administratively closed the case so that the petitioner could exhaust state court remedies as to several of his habeas claims. Accordingly, the present action must be dismissed as duplicative or successive to his stayed petition. Davis v. United States Parole Comm'n, 870 F.2d 657, 1989 WL 25837, at *1 (6th Cir. Mar. 7, 1989) (district court may dismiss a habeas petition as duplicative of a pending habeas petition); see also Flowers v. Trombley, No. 06-10726, 2006 WL 724594, at *1 (E.D. Mich. Case No. 09-13944 Honorable David M. Lawson

Mar. 17, 2006); Harrington v. Stegall, No. 02-70573, 2002 WL 373113, at *2 (E.D. Mich. Feb. 28, 2002). Should the petitioner wish to pursue the claims raised in this case, he should file a motion to re-open the habeas petition in his previously-filed case before Judge Cohn. The petitioner may not challenge the same convictions in two different habeas actions. Accordingly, it is ORDERED that Mr. Harris's petition for writ of habeas corpus is DISMISSED. This dismissal is without prejudice to the proceedings in Case No. 07-15219. s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: October 23, 2009
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 23, 2009. s/Lisa M. Ware LISA M. WARE

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