United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding in pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner has not filed an in forma pauperis affidavit or
paid the required filing fee ($5.00). See 28 U.S.C.
§§ 1914(a); 1915(a). Nevertheless, the undersigned
will recommend dismissal of the pending petition as
of the Rules Governing Habeas Corpus Cases Under Section 2254
provides for summary dismissal of a habeas petition
“[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” The Advisory
Committee Notes for Rule 8 of the Rules Governing Habeas
Corpus Cases Under Section 2254 indicates that the Court may
dismiss a petition for writ of habeas corpus either on its
own motion under Rule 4, pursuant to a motion by the
respondent, or after an answer to the petition has been
is well established that a district court has broad
discretion to control its own docket, and that includes the
power to dismiss duplicative claims.” M.M. v.
Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir.
2012) (citing Adams v. California Dep't of Health
Servs., 487 F.3d 684, 688-89 (9th Cir. 2007).
“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, 487 F.3d at 688. “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.” Id. (citation
instant case, petitioner challenges his 2015 conviction in
the Sacramento County Superior Court for battery with great
bodily injury. ECF No. 1. Review of the court's records
indicate that petitioner has a habeas petition challenging
the same conviction that is currently stayed in case
Turner v. Asuncion, 2:18-cv-01071-WBS-AC
In “assessing whether the second action is duplicative
of the first, we examine whether the causes of action and
relief sought, as well as the parties or privies to the
action, are the same.” Adams, 487 F.3d at 689.
Here, not only are the claims and relief sought identical,
the pending petition appears to be an exact copy of
petitioner's previous petition. Compare ECF No.
1, with Turner v. Asuncion, 2:18-cv-01071-WBS-AC P,
at ECF No. 1. Accordingly, the undersigned finds this
petition for writ of habeas corpus should be dismissed as
duplicative. To the extent that petitioner is seeking to
pursue his remedies with respect to his 2015 conviction in
the Sacramento County Superior Court, petitioner must do so
in his initial habeas proceeding.
to Rule 11 of the Federal Rules Governing Section 2254 Cases,
this court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. A
certificate of appealability may issue only “if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). For
the reasons set forth in these findings and recommendations,
a substantial showing of the denial of a constitutional right
has not been made in this case.
accordance with the above, IT IS HEREBY ORDERED that:
Clerk of the Court shall assign this case to a District
Clerk of the Court is directed to serve a copy of the
petition filed in this case together with a copy of these
findings and recommendations on the Attorney General of the
State of California.
IT IS HEREBY RECOMMENDED that:
Petitioner's application for a writ of habeas corpus be
dismissed without prejudice as duplicative; and
District Court decline to issue a certificate of
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)(1). Within fourteen
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.” Any response
to the objections should be filed and served within fourteen
days after service of the objections. The parties are advised