The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS DUPLICATIVE (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on July 27, 2010.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...."
Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
II. Duplicative Petitions
Petitioner, an inmate of the California State Prison at Corcoran, is serving a sentence of fifteen (15) years to life with the possibility of parole imposed by the San Bernardino County Superior Court in 1989. (Pet. 1.) In the petition, he challenges the decision of the California Board of Prison Hearings rendered on March 26, 2009, denying Petitioner parole for seven years. (Pet. 3-6, 170.)
Petitioner has previously filed another petition concerning this decision. The Court takes judicial notice of its docket and filed documents in Willie James Jones v. K. Clark, Warden, case number 1:10-cv-01297-LJO-DLB-HC. *fn1 In that petition, which was filed on July 21, 2010, Petitioner challenges the same decision rendered by the state parole board on March 26, 2009. (Findings and Rec. to Deny Pet., doc. 13, 1.) Petitioner raises essentially the same due process issue concerning the alleged absence of evidence to support the decision as in the later petition that is the subject of this order. (Id. at 3-9.) With respect to the status of that proceeding, the matter has been fully briefed, and findings and recommendations to deny the petition on the merits have issued. The case thus appears to be well along the path towards a final disposition.
B. Legal Standards "After weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative, later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions." 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).
In assessing whether a second action is duplicative of the first, the Court examines whether the causes of action, relief sought, and the parties or privies to the action are the same. Adams, 487 F.3d at 689.
First, the Court must examine whether the causes of action in the two suits are identical pursuant to the transaction test, developed in the context of claim preclusion. Id. at 689. "Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together." Id. In applying the transaction test, the Court examines four criteria: 1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 2) whether substantially the same evidence is presented in the two actions; 3) whether the two suits involve infringement of the same right; and 4) whether the two suits arise out of the same transactional nucleus of facts.
Second, the Court determines whether the respondents are the same or in privity. Privity includes an array of relationships which fit under the title of "virtual representation," the necessary elements of which are an identity of interests and adequate representation." Adams, 487 F.3d at 691. "Additional features of a virtual representation relationship include a ...