Smith v. Palmer

Filing 4

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus filed by Derrick Smith; Denying a Certificate of Appealability; and Denying Leave to Proceed in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERRICK LEE SMITH,
Petitioner,
v.

CASE NO. 5:12-CV-12605
HONORABLE JOHN CORBETT O’MEARA

CARMEN PALMER,
Respondent.
______________________________/
ORDER DISMISSING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Derrick Lee Smith has filed a pro se petition for the writ of habeas
corpus challenging his 2008 Wayne County conviction for two counts of kidnapping.
The Court understands the habeas petition to allege that (1) the trial court should have
granted Petitioner’s motion for a change of venue, (2) the outrageous amount of bond
set in the state case forced Petitioner to remain in jail under horrible conditions and
deprived him of an opportunity to prepare a defense, (3) the prosecution relied on
perjured testimony by the complainant, (4) the prosecutor failed to give Petitioner the
opportunity to fully review crucial evidence (a recording of a 911 call), (5) the criminal
complaint was defective and no warrant was issued, (7)1 the prosecutor failed to give
Petitioner an opportunity to review physical evidence and transcripts, (8) Petitioner’s
motion for polygraph testing should have been granted, (9) Petitioner is actually

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There is no claim six.

innocent of the charged crimes, (10) Petitioner was charged twice for the same crime in
violation of the Double Jeopardy Clause, (11) Petitioner was denied a preliminary
examination within fourteen days of being arraigned, (12) the state district court judge
failed to rule on Petitioner’s motion to dismiss the charges, (13) Petitioner’s plea was
involuntary, and (14) the Michigan Court of Appeals should have considered Petitioner’s
request to file a pro se supplemental brief.
Petitioner raised the same claims and challenged the same conviction in a
petition for the writ of habeas corpus that he filed in 2010. Although the Court stayed
that case for a period of time, the case was recently reinstated. See Smith v. Ludwick,
No. 5:10-cv-11052 (E.D. Mich. July 19, 2012.) This case duplicates the 2010 case, and,
when faced with duplicative lawsuits, a 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) (alterations in original).
There is no reason to allow this case to proceed, because the issues will be
resolved in the 2010 case. Accordingly, this case is summarily DISMISSED without
prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases, which
requires district courts to dismiss a habeas petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief . . . .“ The
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Court declines to issue a certificate of appealability or leave to proceed in forma
pauperis because reasonable jurists would not find it debatable whether the petition
states a valid claim of the denial of a constitutional right or whether the Court’s
procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

s/John Corbett O'Meara
United States District Judge

Date: July 26, 2012

I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, July 26, 2012, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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