Turner v. State of Nevada et al

Filing 3

ORDER granting ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis; Clerk directed to file the petition for writ of habeas corpus; the petition is dismissed without prejudice as duplicative of the prior-filed action in No. 2:17-cv-01084; a certificate of appealability is denied; Clerk directed to enter final judgment accordingly and petitioner a copy of his papers from this action (mailed to P on 10/13/2017). Signed by Judge Miranda M. Du on 10/13/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

JOHN TURNER,

10
11
12
13

Case No. 3:17-cv-00620-MMD-WGC
Petitioner,

ORDER

v.
STATE OF NEVADA, et al.,
Respondents.

14

This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

15

application (ECF No. 1) to proceed in forma pauperis and for initial review under Rule 4

16

of the Rules Governing Section 2254 Cases.

17

The Court finds based upon the financial materials submitted that petitioner is

18

unable to pay the filing fee within a reasonable time period. The pauper application

19

therefore will be granted, and the Court proceeds to initial review.

20

Following initial review, the petition will be dismissed as duplicative of the earlier-

21

filed action in No. 2:17-cv-01084-RFB-VCF. The four grounds of the petition in the instant

22

case are substantially identical to and based upon the same core of operative facts as

23

the first four grounds in the petition in No. 2:17-cv-01084. While petitioner also names his

24

immediate custodian as a respondent herein, the named respondents otherwise are the

25

same and the warden can be added in the prior action. Both actions challenge petitioner’s

26

custody under the same judgment of conviction and are brought against substantially the

27

same State interests, in a situation where the state attorney general would be defending

28

the actions in the event that the matter was served for a response. Petitioner’s filing of

1

the present action on a § 2241 petition form rather than a § 2254 petition form provides

2

no procedural benefit to petitioner because the petition necessarily arises under § 2254.

3

See, e.g., Shelby v. Bartlett, 391 F.3d 1061, 1063-64 (9th Cir. 2004). A litigant has no right

4

to maintain two separate actions involving the same subject matter at the same time in

5

the same court and against the same parties or interests. See, e.g., Adams v. California

6

Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007), overruled in part on other

7

grounds by Taylor v. Sturgell, 553 U.S. 880 (2008). A district court may exercise its

8

discretion to, inter alia, dismiss a duplicative later-filed action in deference to the first-filed

9

action. Id. The Court finds that a dismissal without prejudice of this later-filed action would

10
11
12
13
14

be in the interests of the efficient administration of justice and its docket.
It is therefore ordered that the application to proceed in forma pauperis (ECF No.
1) is granted and that petitioner will not be required to pay the filing fee.
It further is ordered that the Clerk of Court file the petition 1 and that the petition is
dismissed without prejudice as duplicative of the prior-filed action in No. 2:17-cv-01084.

15

It further is ordered that a certificate of appealability is denied, as jurists of reason

16

would not find the dismissal of the present petition without prejudice to be either debatable

17

or wrong.

18
19
20

The Clerk is directed to enter final judgment accordingly, dismissing this action
without prejudice and to send petitioner a copy of his papers from this action.
DATED THIS 13th day of October 2017.

21
22
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28

1The

filing of the petition does not signify that the petition is free of other defects.

2