Smith v. E.C. Brooks Correctional Facility Warden
ORDER Denying a Certificate of Appealability. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DERRICK LEE SMITH,
CASE NO. 5:17-cv-10806
HONORABLE JOHN CORBETT O’MEARA
E.C. BROOKS CORRECTIONAL
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Derrick Lee Smith has appealed this Court’s order dismissing his
habeas corpus petition as duplicative of a previously filed habeas petition. See ECF
No. 7. Petitioner may not appeal the Court’s opinion and order of dismissal without first
obtaining a certificate of appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1), and a certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
The habeas petition in this case raised the same issues and challenged the
same convictions and sentence that are currently pending before the Court on remand
from the United States Court of Appeals for the Sixth Circuit in case number 5:10-cv-
11052. Petitioner is not entitled to maintain two actions on the same subject in the
same court at the same time, and when faced with a duplicative suit, a federal court
may exercise its discretion to dismiss the lawsuit before it. Twaddle v. Diem, 200 F.
App’x 435, 438 (6th Cir. 2006). Therefore, reasonable jurists would not conclude that
Petitioner’s claims deserve encouragement to proceed further, and the Court declines to
grant a certificate of appealability.
Date: October 24, 2017
s/John Corbett O’Meara
United States District Judge
I hereby certify that on October 24, 2017 a copy of this order was served upon
Petitioner using first-class U.S. mail.
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