Keaton v. Brewer
ORDER dismissing case number 16-14497 and directing the copies of the petition filed in case 16-14497 be used for service on the Warden and the Michigan Attorney General in case number 16-14186. Signed by District Judge Terrence G. Berg. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 4:16-cv-14186
HON. TERRENCE G. BERG
Case No. 4:16-cv-14497
HON. TERRENCE G. BERG
ORDER DISMISSING CASE NUMBER 4:16-cv-14497 AND DIRECTING
THAT COPIES OF THE PETITION FILED IN CASE NUMBER
4:16-cv-14497 BE USED FOR SERVICE ON THE WARDEN AND THE
MICHIGAN ATTORNEY GENERAL IN CASE NUMBER 4:16-cv-14186
On November 28, 2016, petitioner Derrick Keaton filed a pro se habeas
corpus under 28 U.S.C. § 2254. The habeas petition challenged Petitioner’s Wayne
County, Michigan convictions for first-degree murder, breaking and entering a
building with intent to commit a larceny, and felony firearm. Petitioner alleged as
grounds for relief that he was denied effective assistance of counsel in the trial
court, in the appeal of right, and during post-conviction proceedings. See Keaton v.
Brewer, No. 4:16-cv-14186 (E.D. Mich. Nov. 28, 2016). On December 13, 2016,
United States Magistrate Judge R. Steven Whalen ordered Petitioner to submit two
copies of the habeas petition to the Court within twenty-one days of his order.
On December 28, 2016, Petitioner submitted two copies of his habeas petition
to the Court, along with his signed affidavit concerning his ineffective-assistance-ofcounsel claims. Although it appears to the Court that Petitioner intended copies of
the habeas petition to be used to cure the deficiency in case number 4:16-cv-14186,
the Clerk of the Court treated the copies as a new action and assigned the number
2:16-cv-14497 to the new action. The case was randomly assigned to another judge
in this district, but subsequently reassigned to this Court as a companion case to
the earlier-filed case. As a result of the change in the place of holding court, the
office code was changed from 2 to 4, and the case number for the new action became
The two cases (4:16-cv-14186 and 4:16-cv-14497) have identical habeas
petitions. In such a situation, when
[f]aced with a duplicative suit, the federal court may exercise its
discretion to stay or dismiss the suit before it, allow both federal cases
to proceed, or enjoin the parties from proceeding in the other suit.
Smith v. SEC, 129 F.3d 356, 361 (6th Cir. 1997).
“[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.” Curtis v. Citibank, N.A., 226 F.3d 133, 138–39 (2d Cir. 2000);
see also Missouri v. Prudential Health Care Plan, Inc., 259 F.3d 949,
953–54 (8th Cir.2001) (joining other courts that have held a district
court may dismiss one of two identical pending actions).
Twaddle v. Diem, 200 F. App’x 435, 438 (6th Cir. 2006).
Here, the two habeas petitions are identical. Accordingly, it is ORDERED
that case number 4:16-cv-14497 is summarily DISMISSED without prejudice. All
further documents pertaining to Petitioner’s habeas case shall be filed in case
It is further ORDERED that the Clerk of the Court may use copies of the
habeas petition filed in case number 4:16-cv-14497 for service on the warden and
the Michigan Attorney General in case number 4:16-cv-14186. The order to correct
the deficiency in case number 4:16-cv-14186 is VACATED.
It is further ORDERED that Petitioner SHALL re-submit and file his
affidavit in case number 4:16-cv-14186.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 15, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on September
15, 2017, using the CM/ECF system, which will send notification to each party.
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