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Villasenor v. Martell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 21, 2009

ANTONIO V. VILLASENOR, PETITIONER,
v.
MICHAEL MARTELL, RESPONDENT.

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.

It appears that petitioner has filed duplicative petitions, and that this action should therefore be dismissed. A suit is duplicative if the "claims, parties, and available relief do not significantly differ between the two actions." Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal. 1999) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 1983)). "When a complaint involving the same parties and issues has already been filed in another federal district court, the court has discretion to abate or dismiss the second action. Id. at 1144 (citation omitted). "Federal comity and judicial economy give rise to rules which allow a district court to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court." Id. at 1145 (citation omitted). "[I]ncreasing calendar congestion in the federal courts makes it imperative to avoid concurrent litigation in more than one forum whenever consistent with the right of the parties." Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979).

On August 21, 2009, petitioner filed an application for a writ of habeas corpus. Villasenor v. Martell, No. Civ. 09-2324 FCD EFB, Docket No. 1.*fn1 In that petition, petitioner challenges a May 18, 2005 conviction in the Sacramento County Superior Court, which resulted in a sentence of 30 years in state prison. Id. at 2. On September 14, 2009, petitioner commenced this action by filing a second application, which challenges the same conviction and raises the same claims as the earlier application. Due to the duplicative nature of the present action, this action should be dismissed and petitioner should proceed on the action he initially commenced.

Accordingly, it is hereby ORDERED that:

1. Petitioner's request to proceed in forma pauperis is granted; and,

2. The Clerk is directed to randomly assign a United States District Judge to this case. Further, it is RECOMMENDED that this action be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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