Doss #531147 v. Palmer

Filing 4

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMMY JUNIOR DOSS,
Petitioner,
v.

Case No. 1:13-cv-563
Honorable Janet T. Neff

CARMEN PALMER,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it is duplicative of another action pending before the Court.

Factual Allegations
Petitioner Timmy Junior Doss challenges a judgment of conviction and sentence
entered in Kalamazoo County Court on July 19, 2010. In another action filed approximately a
month before this one, Petitioner submitted a habeas application challenging the same criminal
judgment, and raising substantially the same grounds for relief. See Doss v. Palmer, No. 1:13-cv417 (W.D. Mich.). Thus, the instant action is duplicative and will be dismissed for that reason.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
without prejudice pursuant to Rule 4 because it is duplicative of another action before the Court.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals has disapproved of the issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is warranted.
Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in
Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.
Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural
grounds, a certificate of appealability may issue only “when the prisoner shows, at least, [1] that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and [2] that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Both showings must be made to warrant the grant of a
certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly
dismissed the petition. Therefore, the Court denies Petitioner a certificate of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated: June 19, 2013

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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