Bennett v. Slatery

Filing 7

MEMORANDUM AND OPINION finding that because the petition at issue here contains no grounds for relief, this Court will exercise its discretion and will DISMISS this § 2254 petition without prejudice. Signed by Chief District Judge Thomas A Varlan on 2/6/2017. (c/m)(MDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
COREY ALAN BENNETT,
Petitioner,
v.
HERBERT SLATERY, Attorney General
for the State of Tennessee, Respondent,
Respondent.

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No.:

3:15-CV-198-TAV-CCS

MEMORANDUM OPINION
This pro se state prisoner’s petition for a writ of habeas corpus filed under 28 U.S.C.
§ 2254 was ordered to be transferred to this Court by the Middle District of Tennessee [Docs.
1, 2]. Petitioner is challenging the legality of his confinement pursuant to his October 12,
2012, state court conviction for attempted especially aggravated sexual exploitation of a
minor. For this offense, Petitioner received a ten-year sentence of imprisonment. The
judgment was entered in the Criminal Court for Knox County, Tennessee. The petition
alleges no claims for relief. For reasons explained below, Respondent will not be required to
file an answer, and this petition will be DISMISSED.
This pleading is almost a carbon copy of a petition for a writ of habeas corpus under
28 U.S.C. § 2254 that was filed in the Western District of Tennessee on December 30, 2014,
under the prison “mailbox” rule in Houston v. Lack, 478 U.S. 266, 276 (1988), and then
transferred to this Court. That petition remains pending before the Honorable Thomas W.
Phillips. See Bennett v. Slatery, No. 3:16-CV-656-TWP-HBG (E.D. Tenn., filed Nov. 14,

2016).1 However, the petition in 3:16-CV-656, unlike the present petition, contains one
ground for relief. Faced with a duplicative suit, such as this one, a federal court may exercise
its discretion to stay or dismiss the suit before it, allow both federal cases to proceed, or
enjoin the parties from proceeding in the other suit. See Smith v. SEC, 129 F.3d 356, 361
(6th Cir. 1997).
With respect to duplicative suits, the Sixth Circuit has stated that “[s]imple dismissal
of the second suit is [a] common disposition because plaintiffs have no right to maintain two
actions on the same subject in the same court, against the same defendant at the same time.”
Twaddle v. Diem, 200 F. App’x 435, 438 (6th Cir. 2006) (citations omitted) (second
alteration in original).
Accordingly, because the petition at issue here contains no grounds for relief, this
Court will exercise its discretion and will DISMISS this § 2254 petition without prejudice.
See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (explaining that federal courts have “due
flexibility to prevent vexatious litigation,” with respect to duplicative mixed petitions); Link
v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (noting a federal court’s ‘“inherent
power,’ governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of cases”);

1

Though the petition in Bennett v. Slatery, No. 3:16-CV-656, was filed in this district on
the date it was transferred here, i.e., November 14, 2016, the petition was mailed originally to the
Western District in an envelope bearing a prison mailroom postmark of December 30, 2014 [See
3:16-CV-656, Doc. 1-1]. Oddly enough, the instant petition also was filed on December 30,
2014, under the mailbox rule [Doc. 1-1]. The filing date of a petition can become a crucial issue
where a respondent asserts a defense under § 2244(d)’s one-year statute of limitations for filing a
§ 2254 petition.
2

Christian v. Trombley, No. 2:07-10900, 2007 WL 1266167, at *1 (E.D. Mich. Apr. 30, 2007)
(dismissing a duplicate habeas corpus petition without prejudice).
A certificate of appealability will not issue because Petitioner has not demonstrated
“that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 478.
Finally, the Court CERTIFIES that any appeal in this matter would not be taken in
good faith, 28 U.S.C. § 1915(a)(3), and leave to appeal in forma pauperis will be DENIED.
If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis and a supporting affidavit in the Sixth Circuit Court of
Appeals, within 30 days of the date of filing of the notice. See Fed. R. App. P. 24(a)(5).
AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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