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Bermudez v. Mukasey

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


March 1, 2010

JESUS VALDEZ BERMUDEZ, PETITIONER,
v.
MICHAEL B. MUKASEY, ET.AL., RESPONDENTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 9]

Petitioner is detained by the Bureau of Immigration and Customs Enforcement ("BICE") and is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

DISCUSSION

On March 31, 2009, Respondent filed a motion to dismiss the instant petition as duplicative of the case pending in the United States Court of Appeals for the Ninth Circuit, Burmudez v. Chertoff, case number 08-17428. (Court Doc. 9.) Petitioner filed an opposition to the motion on April 17, 2009. (Court Doc. 11.)

Respondent argues the instant petition is duplicative of the appeal pending in the Ninth Circuit as both petitions challenge the adequacy of his November 14, 2008 bond hearing. Respondent is correct. The Court has reviewed the petition pending in the Ninth Circuit, case number 08-17428, and that petition, like the instant petition, challenges the November 2008 bond hearing. Respondent filed an answer to the petition on June 19, 2009, and Petitioner filed a response on July 9, 2009. The Ninth Circuit granted Petitioner's request to expedite the case and it is now pending review.

Therefore, because the issues presented in the instant petition are the same as those presented in the petition pending at the Ninth Circuit, the instant petition should be dismissed as duplicative. Adams v. California Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) ("Plaintiffs generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'" Adams, 487 F.3d at 688 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc)).

RECOMMENDATION

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Respondent's motion to dismiss the instant petition as duplicative be GRANTED; and

2. The instant petition for writ of habeas corpus be dismissed.

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 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) 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 Recommendation." Replies to the objections shall be served and filed within seven (7) days 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.

20100301

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