Herrera v. Burt

Filing 3

ORDER consolidating cases 17-12175 and 17-12192. Signed by District Judge Gershwin A. Drain. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUEBEN HERRERA,
Case Nos. 17-12175, 17-12192

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
SHERRY L. BURT,

UNITED STATES MAGISTRATE JUDGE
ANTHONY P. PATTI

Respondent.
/

ORDER CONSOLIDATING CASES
Petitioner Rueben Herrera (“Petitioner”), incarcerated at the Muskegon
Correctional Facility in Muskegon, Michigan, has filed two petitions for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner was convicted in 1974 after
a jury trial in the Oakland Circuit Court of second-degree murder, MICH. COMP.
LAWS § 750.317, for which he received a life sentence. Both petitions raise a single
claim: Petitioner was denied his right to appeal his conviction when his appellate
counsel disregarded his instructions to file a timely appeal of right. The first
petition was assigned Case No. 17-12175, and the second petition was assigned
Case No. 17-12192.

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Federal Rule of Civil Procedure 42(a) provides as follows:
(a) Consolidation. When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions; it may order all
the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
FED. R. CIV. P. 42(a).
It is within the discretion of the district court to determine whether cases
involving the same factual and legal questions should be consolidated. Stemler v.
Burke, 344 F.2d 393, 396 (6th Cir. 1965). In the instant case, Petitioner filed two
petitions challenging the same conviction and raising the same issue. Indeed, it
appears Petitioner may have intended to filed a single action but sent the
documents in separate envelopes. Because the two cases involve common
questions of fact and law, the court will consolidate the two cases pursuant to
Federal Rule of Civil Procedure 42(a).
IT IS ORDERED that Case Nos. 17-12175 and 17-12192 are hereby
CONSOLIDATED. The Clerk of the Court shall docket a copy of this order in
both cases.
IT IS FURTHER ORDERED that the Clerk shall docket all of the
documents filed in Case No. 17-12192 in Case No. 17-12175. All future
documents shall be filed under Case No. 17-12175.

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IT IS FURTHER ORDERED that Case No. 17-12192 is DISMISSED.

/s/Gershwin A Drain
GERSHWIN A. DRAIN
United States District Judge
Dated: July 11, 2017

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