Chapman v. Warden Lebanon Correctional Institution

Filing 5

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 2 Report and Recommendation. Petitioner's Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE to prosecution of his duplicative habeas petition, Maurice Chapman, Sr. v. W arden, 1:11-cv-00560. The Court DECLINES to issue a certificate of appealability with respect to the dismissal without prejudice. To the extent Petitioner would apply to proceed in forma pauperis on appeal, the Court CERTIFIES that any appeal of th is Opinion and Order would not be taken in good faith, and any application to appeal in forma pauperis thus should be denied. Signed by Judge S Arthur Spiegel on 12/8/2011. (km1) (Additional attachment(s) added on 12/8/2011: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NO. 1:11-CV-648

MAURICE CHAPMAN,
Petitioner,

v.

OPINION AND ORDER

WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.
This matter comes before the Court on the September 29,
2011 Report and Recommendation of the Magistrate Judge (doc. 2),
and what we read as Petitioner's objection (doc. 4).
Our
Recommendation

review
finds

of
it

the
to

Magistrate
be

Judge's

well-reasoned

and

Report

and

detailed.

Therefore, we reiterate only those portions of it necessary to give
context to our ruling.

Petitioner filed the instant Petition for

Writ of Habeas Corpus on September 20, 2011.

In evaluating whether

Petitioner had paid the appropriate filing fee,
proceed without

prepayment

of

such

fee,

the

or applied to

Magistrate

Judge

observed that Petitioner had filed a motion for leave to proceed in
forma

pauperis

petition.

("IFP")

in

connection

with

a

separate

habeas

That action was commenced in the Southern District of

Ohio (Cincinnati) on August 16, 2011 and is currently before the
Honorable William O.
Chapman,

Sr.

v.

Bertelsman in the
Warden,

No.

case captioned Maurice

1:11-CV-560

("Chapman

I").

Petitioner's IFP motion (Chapman I, doc. 1) was denied (Chapman I,
doc. 2), as the Court found he had the financial ability to pay the

full

$5.00

filing

The

fee.

Clerk

of

Court

thereafter

was

instructed to administratively close the matter on the docket of
the Court, with reopening permitted upon receipt of the full fee
(Chapman

I,

doc.

2),

which

09/26/2011 docket notation).
was

Petitioner

tendered

(Chapman

I,

Petitioner's Writ of Habeas Corpus

then docketed on September 29,

2011

(Chapman I,

doc.

4).

Respondent moved for an extension of time, until January 27, 2012,
to file his answer (Chapman I, doc. 8), which was granted (Chapman
I, 10/14/2011 notation order).

Ultimately, of course, the matter

will be ripe for an initial report and recommendation by Magistrate
Judge Bowman.
It is important to note that Chapman I and the instant
cause of action both challenge the same conviction and sentence on
similar grounds for relief.
grounds

that

Indeed, in more than one instance, the

underpin Petitioner's original

petition not

only

encompass those set forth in his second petition, but also are more
detailed.
states
Justice

For example,

merely,
(?)

"GROUND THREE"

" [1] ength of

Center"

(doc.

detention

2 at 1),

original petition he elaborates,

in his second petition
in

the

Hamilton

County

but in "GROUND TWO" of his

"[s] at in the Hamilton County

Justice Center from October 17, 2009 until July 7, 2011.
(trial) was ineffective"

(doc. 2 at 2) .

When,

habeas

Counsel

as

here,

duplicative, dismissal is permitted.

petitions

essentially

are

"A district court may dismiss

an action when it is duplicative of another action filed in federal

court." Green v. Ouarterman, No. H-08-533,
(S.D. Tex. June 18, 2008)

2008 WL 2489840,

(citing Remington Rand Corp. v. Business

Systems, Inc., 830 F.2d 1274, 1275-76 (3d Cir. 1987)).
holds true in habeas cases as well.

*1

(6th Cir. Mar. 7, 1989)

Cummings v. Rapelje, No. 11-cv-10239, at *1
Dismissal,

however,

This tenet

Davis v. united States Parole

Comm'n, No. 88-5905, 1989 WL 25837,

2011) .

(E.D. Mich.

should be without

995

i

Feb. 3,

prej udice

petitioner's prosecution of the duplicative pending suit.
v. Moore, 980 F.2d 994,

*2

to

a

Pittman

(5th Cir. 1993) (successive IFP suit

dismissed without prejudice) .
Having engaged in a
discussed
Magistrate

above,

therefore,

Judge's

Report

de
we

and

llQYQ

hereby

review,
ADOPT

for the reasons
and

Recommendation.

AFFIRM

the

Petitioner's

Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE
to prosecution of his duplicative habeas petition, Maurice Chapman,
Sr. v. Warden, No. 1:11-CV-560.

We DECLINE to issue a certificate

of appealability with respect to our dismissal without prejudice,
because a "jurist of reason" would not find it debatable whether
this Court is correct in its procedural rulings.

See Slack v.

McDaniel,

as initially

529 U.S.

473,

484-85

(2000).1

Finally,

noted, it was the lack of payment of the appropriate filing fee,
and the lack of an application to proceed without prepayment of

IThe Magistrate Judge correctly noted that the issue of
whether Petitioner has stated any viable constitutional claim in
his duplicative petition need not be evaluated when, as here, a
habeas petition is dismissed on a procedural ground. See Slack,
529 U.S. at 484.

such fee,

that

led the Magistrate Judge

to discover that

the

instant petition was the second (and a duplicative) one filed by
Petitioner.

Accordingly, she made no ruling on whether Petitioner

would have qualified to proceed without payment of the appropriate
filing fee.

Nevertheless, to the extent Petitioner would apply to

so proceed on appeal,

pursuant

to

28

U. S. C.

§

1915 (a) (3),

we

CERTIFY that any appeal of this Opinion and Order would not be
taken

in good

faith,

and any application

pauperis thus should be denied.

to

appeal

in

See Fed. R. App. P. 24(a) (3) (A).

SO ORDERED.

Dated,

forma

~
District Judge