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Tatarinov v. Superior Court of the State of California

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 27, 2007

DIMITRI VALERYEVICH TATARINOV, PETITIONER,
v.
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO; OFFICE OF THE CHIEF COUNSEL, DEPT. OF HOMELAND SECURITY; U.S. ATTORNEY, SOUTHERN DISTRICT; ICE, RESPONDENTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER (1) GRANTING PETITIONER'S MOTION TO CONSOLIDATE CASES; (2) ORDERING FILING OF CONSOLIDATED PETITION; (3) SETTING BRIEFING SCHEDULE; AND (4) VACATING HEARING DATE AND SETTING BRIEFING SCHEDULE ON PETITIONER'S MOTION FOR STAY OF REMOVAL

Petitioner Dimitri Valeryevich Tatarinov, represented by counsel, simultaneously filed two Petitions for Writ of Habeas Corpus under 28 U.S.C. § 2241. One was filed under case no. 07cv2033-L(NLS) and the other under 07cv2034-JAH(POR). On November 4, 2007 in case no. 07cv2034-JAH(POR), Petitioner filed Petitioner's a Motion to Consolidate This Case with Case No. 07cv2033-L(NLS).*fn1 On November 15, 2007, case no. 07cv2034-JAH(POR) was transferred to this court as a related case pursuant to Civil Local Rule 401.(d). Because the two petitions present common issues of fact and law, Petitioner's motion to consolidate is GRANTED. Petitioner is ordered to file a consolidated petition, and the court is setting a new briefing schedule on the petition and Petitioner's pending motion for stay of removal. All further pleadings shall be filed in case no. 07cv2033-L(NLS) only.

In the petition filed under case no. 07cv2034, Petitioner attacks his state court robbery conviction which he claims was due to ineffective assistance of counsel. In his petition filed under case no. 07cv2033, he seeks attacks a subsequent state court shoplifting conviction, which was "upgraded" to a felony due to the prior robbery conviction. Petitioner argues his second conviction was due to ineffective assistance of counsel in the prior criminal case as well as in the subsequent case. As stated in both petitions, due to these convictions, Petitioner, a permanent resident, was placed in removal proceedings. Petitioner was found removable and is currently held in custody at the Immigration and Customs Enforcement Detention and Removal Center in San Diego pending removal. The respondents in both actions are identical.

Pursuant to Federal Rule of Civil Procedure 42(a), the court may consolidate cases involving common questions of law or fact to avoid unnecessary costs and delay:

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

The court has broad discretion in ordering consolidation. Investors Research Co. v. United States Dist. Court for Cent. Dist., 877 F.2d 777 (9th Cir. 1989). Because the petitions involve the same parties, present the same issues of law, request the same relief and because many of the issues of fact are the same, the court hereby consolidates the two actions, and Petitioner is ordered to file a consolidated petition in case no. 07cv2033-L(NLS). Based on consolidation and the addition of additional respondents in the amended petitions filed November 16, 2007, court also modifies the briefing schedule on the consolidated petition and Petitioner's pending motion for stay of removal.

For the foregoing reasons, IT IS HEREBY ORDERED as follows:

1. Petitioner's Motion to Consolidate This Case with Case No. 07cv2033-L(NLS), filed November 4, 2007, is GRANTED. Cases no. 07cv2033-L(NLS) and 07cv2034-L(NLS) are hereby CONSOLIDATED. From the date of this order forward, all pleadings shall be filed in case no. 07cv2033-L(NLS) only.

2. No later than November 30, 2007 Petitioner shall file a consolidated petition which includes all facts and legal arguments he intends to assert in both cases. Respondents shall file and serve their respective responses no later than December 21, 2007. The responses shall include any and all documents relevant to the determination of the issues raised by the consolidated petition. If Petitioner wishes to reply to Respondents' responsive memoranda, a traverse must be filed no later than January 7, 2008.

3. No later than December 3, 2007 Respondents shall file their respective memoranda of points and authorities in opposition to Petitioner's motion for stay of removal, together with supporting evidence, if any. Although Petitioner filed one motion for stay in each case, the motions are identical. Accordingly, opposition briefing is required only in case no. 07cv2033-L(NLS). If Petitioner wishes to reply to Respondents' opposition briefing, a reply memorandum of points and authorities must be filed no later than December 3, 2007, together with supporting evidence, if any.

4. Upon filing the foregoing, the parties shall await further order of this court. The hearing date currently set for February 19, 2008 is hereby VACATED.

IT IS SO ORDERED.


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