Martin v. Warden, Chillicothe Correctional Institution

Filing 3

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Howard E. Martin, III. The Undersigned RECOMMENDS that the Court DISMISS this case, WITHOUT PREJUDICE to Petitioner's continued prosecution of his habeas corpus clai ms in Case No. 2:22-cv-4423. Objections to R&R due by 6/1/2023. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/18/2023. (vb) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
HOWARD E. MARTIN, III,
Petitioner,
vs.
TIM SHOOP, WARDEN,
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.

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Case No. 1:23-cv-205

Judge Jeffery P. Hopkins
Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION
Petitioner, Howard E. Martin, III, is a prisoner in state custody. On April 13, 2023,
Petitioner submitted to the Court a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody,” instituting this case, No. 1:23-cv-205. (See Doc. 1). In it,
Petitioner challenges the 2017 convictions and sentences imposed on him in the Hamilton
County, Ohio, Court of Common Pleas. (Doc. 1, PageID 29).
Petitioner previously filed a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody” challenging the same 2017 convictions and sentences imposed on
him in the Hamilton County, Ohio, Court of Common Pleas. In Case No. 2:22-cv-4423, also
captioned Howard E. Martin, III v. Tim Shoop, Warden, Chillicothe Correction Institution,
Petitioner submitted nearly the same petition. (See Doc. 14 in Case No. 2:22-cv-4423). The
Court has ordered Respondent to answer and the case remains pending before Judge Morrison
and Magistrate Judge Litkovitz. (See Doc. 13 in Case No. 2:22-cv-4423).
It is not clear why Petitioner submitted a similar but not identical petition to this Court a
few days after he submitted the Petition in Case No. 2:22-cv-4423. (Compare Doc. 14, PageID

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127 in Case No. 2:22-cv-4423 (petition was submitted on April 6, 2023) with Doc. 1, PageID 43
in Case No. 1:23-cv-205 (Petition was submitted on April 12, 2023)).1 He did not indicate that
the Petition in this case was an amended petition, nor did he include the previous case number in
the caption of this Petition. (See Doc. 1, PageID 29). Petitioner did, however, include a partial
application to proceed in forma pauperis with the Petition, which may suggest that he intended to
institute a new case. (See Doc. 1, PageID 44-52).
Upon review of both petitions, the Undersigned concludes the Petition that instituted this
case is duplicative of the operative petition filed earlier in Case No. 2:22-cv-4423. This Petition,
and this case, should be dismissed.
“A federal district court has the inherent power to dismiss an action when it is duplicative
of another action pending in that court.” White v. Ohio, No. 3:22-cv-237, 2022 WL 9584100, at
*1 (S.D. Ohio Sept. 6, 2022), report and recommendation adopted, 2022 WL 9584127 (S.D.
Ohio Sept. 29, 2022); see also Baldwin v. Marshall & Ilsley Fin. Corp., No. 1:11-cv-804, 2011
WL 7499434, at *4 (S.D. Ohio Nov. 23, 2011) (and numerous cases cited therein), report and
recommendation adopted, 2012 WL 869289 (S.D. Ohio Mar. 14, 2012). The Supreme Court of
the United States has explained that “considerations of wise judicial administration, giving
regard to conservation of judicial resources and comprehensive disposition of litigation,” have
given rise to the “general principle” that duplicative litigation in the federal court system is to be
avoided. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)
(cleaned up).

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It appears that the April 6 petition filed in Case No. 2:22-cv-4423 was the fourth petition filed in that case. (See
Doc. 1, 4, 6, 14). It does not appear that leave was sought or granted to file an additional petition in that case. See
generally 28 U.S.C. § 2242, ¶ 3; Fed. R. Civ. P. 15(a)(2) (concerning amended pleadings; applicable here under
Rule 12 of the Rules Governing Section 2254 Cases in the District Courts).

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Accordingly, the Undersigned RECOMMENDS that the Court DISMISS this case, No.
1:23-cv-205, WITHOUT PREJUDICE to Petitioner’s continued prosecution of his habeas
corpus claims in Case No. 2:22-cv-4423. Any request to submit additional petitions in that case
should be made in that case.
The Undersigned further RECOMMENDS that the Court DENY a certificate of
appealability, as reasonable jurists would not debate whether this matter is duplicative of Case
No. 2:22-cv-4423. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); White v. Ohio, No. 3:22cv-237, 2022 WL 9584127, at *1 (S.D. Ohio Sept. 29, 2022) (concluding that “any appeal from
this Court’s decision [dismissing a duplicative habeas case] would be objectively frivolous”).
Finally, the Undersigned RECOMMENDS that the Court CERTIFY that any appeal of
the Court’s dismissal would not be taken in good faith, and on that basis DENY Petition leave to
proceed in forma pauperis on appeal.
NOTICE REGARDING OBJECTIONS TO
THIS REPORT AND RECOMMENDATION
If any party objects to this Report and Recommendation (“R&R”), the party may serve
and file specific, written objections to it within FOURTEEN DAYS after being served with a
copy thereof. Fed. R. Civ. P. 72(b); Rule 12 of the Rules Governing Section 2254 Cases in the
United States District Court. All objections shall specify the portion(s) of the R&R objected to
and shall be accompanied by a memorandum of law in support of the objections. The Court may
extend the fourteen-day objections period if a timely motion for an extension of time is filed.
A Judge of this Court will make a de novo determination of those portions of the R&R to
which objection is made. Upon proper objection, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further

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evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the R&R will result in a
waiver of the right to have the District Judge review the R&R de novo, and will also operate as a
waiver of the right to appeal the decision of the District Court adopting the R&R. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

May 18, 2023

s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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