UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 7, 2008
MARIO A. MELCHIONNE, PETITIONER,
JAMES E. TILTON, RESPONDENT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER VACATING FINDINGS AND RECOMMENDATION ISSUED JULY 18, 2008 (Court Doc. 13) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION AS DUPLICATIVE (Court Doc. 15)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on January 18, 2008. On February 6, 2008, Petitioner filed a motion for leave to file a supplemental petition. (Court Doc. 6.) On March 4, 2008, the Court directed Petitioner to file a second amended petition. (Court Doc. 8.) Specifically, Petitioner was advised that he could not challenge several different decisions in a single petition, only one decision could be challenged per habeas petition. (Id.)
Thereafter, on March 14, 2008, Petitioner filed a motion to withdraw the section 2254 petition filed in the wrong case. (Court Doc. 10.) On May 16, 2008, the Court granted Petitioner's motion to withdraw the supplemental petition, and the Clerk of Court was directed to open a new section 2254 action with that petition. The new case was assigned case number 1:08- cv-00688-AWI-SMS (HC).*fn1 The Court further informed Petitioner the original petition filed in this case appeared to challenge both a California Department of Corrections and Rehabilitation Rules Violation for murder and a denial of parole as a result of the violation. Therefore, Petitioner was advised and directed to amend the petition to determine the decision he wished to challenge in the instant proceeding.
Not having received an amended petition in this action, the Court issued a recommendation to dismiss the action for failure to comply with a court order, on July 18, 2008. (Court Doc. 13.) On July 29, 2008, Petitioner filed objections to the Findings and Recommendation. (Court Doc. 14.) In his objections, Petitioner indicates that he did in fact submit an amended petition; however, it was identified with a new case number 1:08-cv-00863-TAG HC. (Objections, at 1.) Indeed, on June 19, 2008, a petition for writ of habeas corpus was filed by Petitioner, and a new case was inadvertently opened, i.e. 1:08-cv-00863-TAG HC.*fn2 To remedy the error, on October 3, 2008, Judge Goldner directed that the petition be filed as an amended petition in the instant case and administratively closed case number 1:08-cv-00863. (See Court Doc. 6 in 1:08-cv-00863; Court Doc. 15 in 1:08-cv-00116-DLB HC.)
Therefore, the instant petition for writ of habeas corpus is currently proceeding on the first amended petition filed on June 19, 2008. (Court Doc. 15.) In the amended petition, Petitioner is challenging his state court conviction for murder and contends that (1) he was induced into taking a plea agreement and was denied the right to counsel; and (2) he was illegally sentenced. (Amended Petition, at 3-4.) These are the same claims that Petitioner presented in his supplemental petition previously filed in this action and now pending in case number 1:08-cv-00688-AWI-SMS HC. Thus, Petitioner has chosen to re-allege the same claims that are already pending in this Court, and the amended petition must be dismissed as duplicative.
Accordingly, it is HEREBY RECOMMENDED that:
1. The Findings and Recommendation issued July 18, 2008 (Court Document 13), be VACATED;
2. The instant petition for writ of habeas corpus be DISMISSED, as duplicative; and,
3. The action be dismissed, with prejudice.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.