(HC) Magee v. Clark, No. 1:2010cv00830 - Document 5 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be DISMISSED without prejudice; Recommending that Petitioners 3 MOTION for Assignment of Judge Oliver W. Wanger be DENIED as Moot, signed by Magistrate Judge Sheila K. Oberto on 7/21/2010, referred to Judge Ishii. Objections to F&R due by 8/24/2010 (Marrujo, C)
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(HC) Magee v. Clark Doc. 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RUCHELL CINQUE MAGEE, 11 Petitioner, 12 13 14 v. K. CLARK, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00830-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS DUPLICATIVE AND AS APPROPRIATELY HEARD IN THE DISTRICT OF CONVICTION (Doc. 1) AND TO DENY PETITIONER’S MOTION FOR ASSIGNMENT AS MOOT (Doc. 3) 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 Pending before the Court is 1) the petition, and 2) a motion for 20 assignment of Judge Oliver W. Wanger to this petition because the 21 petition is related to a previously filed petition pending before 22 Judge Wanger. 23 I. Background 24 On September 21, 2009, Petitioner filed a petition for writ 25 of habeas corpus in this Court. This petition has been assigned 26 case number “1:09-CV-01663 OWW GSA HC.” In that action, findings 27 and recommendations to grant the respondent’s motion to dismiss 28 1 Dockets.Justia.com 1 the petition were filed on July 15, 2010 (doc. 40) and are 2 currently pending before the Court. 3 decision of the California Board of Parole Hearings in 2008 not 4 to set a determinate term for Petitioner and to deny parole. 5 (Doc. 40, 2:1-3.) 6 The petition challenges the On May 12, 2010, Petitioner filed a second petition for writ 7 of habeas corpus that is pending in the instant action in this 8 Court. 9 00830 AWI SKO HC.” This petition has been assigned case number “1:10-CVThe petition challenges Petitioner’s 10 conviction in 1975 of kidnaping in violation of Cal. Pen. Code 11 § 209. 12 allegedly suffered in the course of prosecution and conviction of 13 kidnaping, including all parties’ ignoring an alleged acquittal 14 of the charge of kidnaping, being forced into a guilty plea by 15 the misconduct of counsel, being denied the effective assistance 16 of counsel at trial, and suffering a violation of the protection 17 against double jeopardy. 18 The petition details errors or violations of rights (Pet. 5, 10.) However, in several locations in the petition, Petitioner 19 refers to the later use of his conviction, or the failure to 20 recognize his acquittal, as a basis for a denial of parole. 21 (Pet. 3, 5, 6.) 22 Board, namely, an order to the Parole Board with respect to use 23 of information concerning the acquittal. He also seeks some relief related to the Parole (Id. 11.) 24 II. 25 Petitioner is housed at the Corcoran State Prison, which is Dismissal of Petitioner’s Challenge to His Conviction 26 within the Eastern District of California. 27 kidnaping conviction in the Santa Clara County Superior Court, 28 which is within the Northern District of California. 2 He suffered his 1 Statutory provisions permit the filing of a petition 2 challenging a conviction in the district of confinement or the 3 district of conviction. 4 exercise of its discretion and in furtherance of justice, a 5 district court where a petition is filed may transfer the 6 petition to another district for hearing and determination. 7 This statute has been interpreted to have been intended to 8 facilitate the hearing of claims concerning convictions in the 9 district where the conviction was sustained: 10 11 12 13 14 15 16 17 28 U.S.C. § 2241(d). However, in the Id. The legislative history of the section makes clear that a district court should transfer a petition to the district in which petitioner was convicted and sentenced if the transferring court is of the view that an evidentiary hearing will be necessary before final determination can be had. 2 United States Code Congressional and Administrative News, p. 2968 (1966). The purpose of this procedure is to ‘permit the hearing to be held by the district court for the place of conviction, the one best able to administer full justice.’ Id. at p. 2974. Laue v. Nelson, 279 F.Supp. 265, 266 (C.D.Cal. 1968). Insofar as Petitioner challenges his kidnaping conviction 18 (or the failure of the courts and all other parties and 19 institutions to recognize an acquittal of kidnaping), 20 Petitioner’s claims are more appropriately heard in the district 21 in which the conviction was sustained. 22 conviction was sustained in the Santa Clara County Superior 23 Court, claims concerning his conviction are appropriately 24 considered in the Northern District of California. Because Petitioner’s 25 Here, it does not appear that the conduct of the parole 26 authorities is the gist of Petitioner’s claim; rather, Petitioner 27 appears to mention the actions of the California Supreme Court 28 and the parole authorities only in a secondary fashion. 3 The 1 petition relates primarily to the validity of Petitioner’s 2 conviction in Santa Clara. 3 that is beyond the scope of the record of the convictions (see, 4 e.g., pet. 19-21), and it is thus possible that resolution of the 5 petition will involve an evidentiary hearing. 6 Petitioner himself recognizes that the instant petition relates 7 to his conviction, whereas the petition in the other case relates 8 to parole. 9 habeas petition in 1:09-cv-01663-OWW-GSA as a “Parole issue”]; Further, Petitioner submits evidence Finally, (No. 1:10-00830-AWI-SKO, pet. 10 [describing the 10 mot. (doc. 3) 1:22-24 [describing one petition as challenging 11 parole, the other as showing jury acquittal].) 12 Accordingly, to the extent that Petitioner seeks to 13 challenge his conviction in Santa Clara, the petition will be 14 dismissed without prejudice to Petitioner’s filing a petition 15 addressing the conviction in the Northern District of California, 16 the district in which Petitioner suffered the conviction. 17 III. Dismissal of the Present Petition as Duplicative insofar as Petitioner Challenges a Parole Decision 18 To the extent that Petitioner intends in the instant action 19 to challenge a decision of the Parole Board in 2008, the petition 20 is duplicative of the petition previously filed in 1:09-cv-166321 OWW-GSA-HC. 22 “After weighing the equities of the case, the district court 23 may exercise its discretion to dismiss a duplicative later-filed 24 action, to stay that action pending resolution of the previously 25 filed action, to enjoin the parties from proceeding with it, or 26 to consolidate both actions.” Adams v. California Dept. of 27 Health Services, 487 F.3d 684, 688 (9th Cir. 2007). 28 4 “Plaintiffs 1 generally have ‘no right to maintain two separate actions 2 involving the same subject matter at the same time in the same 3 court and against the same defendant.’” Adams, 487 F.3d at 688 4 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)) 5 (en banc)). 6 In assessing whether a second action is duplicative of the 7 first, the court examines whether the causes of action, relief 8 sought, and the parties or privies to the action are the same. 9 Adams, 487 F.3d at 689. 10 First, the Court must examine whether the causes of action 11 in the two suits are identical pursuant to the transaction test, 12 developed in the context of claim preclusion. 13 “Whether two events are part of the same transaction or series 14 depends on whether they are related to the same set of facts and 15 whether they could conveniently be tried together.” 16 applying the transaction test, the Court examines four criteria: 17 1) whether rights or interests established in the prior judgment 18 would be destroyed or impaired by prosecution of the second 19 action; 2) whether substantially the same evidence is presented 20 in the two actions; 3) whether the two suits involve infringement 21 of the same right; and 4) whether the two suits arise out of the 22 same transactional nucleus of facts. 23 Id. at 689. Id. In Id. Second, the Court determines whether the respondents are the 24 same or in privity. 25 which fit under the title of “virtual representation,” the 26 necessary elements of which are an identity of interests and 27 adequate representation.” 28 features of a virtual representation relationship include a close Privity includes an array of relationships Adams, 487 F.3d at 691. 5 “Additional 1 relationship, substantial participation, and tactical 2 maneuvering.” 3 Adams, 487 F.3d at 691. A plaintiff is required to bring at one time all of the 4 claims against a party or privies relating to the same 5 transaction or event. 6 discretion to dismiss a duplicative complaint with prejudice in 7 order to promote judicial economy and the comprehensive 8 disposition of litigation, protect the parties from vexatious and 9 expensive litigation, and serve the societal interest in bringing 10 an end to disputes. Adams, 487 F.3d at 693-94. The Court has Adams, 487 F.3d at 692. 11 Because the instant petition challenges the same parole 12 decision as that being litigated in the previously filed and 13 currently pending petition in case number 1:09-CV-01663 OWW GSA, 14 the Court will recommend that the Court exercise its discretion 15 to dismiss the instant petition as duplicative. 16 that Petitioner seeks to pursue his remedies with respect to the 17 decision of the Parole Board, Petitioner must do so in the 18 original case. 19 IV. 20 In view of the recommendation to dismiss the petition, it To the extent Motion for Appointment of a District Judge 21 will be further recommended that Petitioner’s motion to have this 22 case assigned to the Honorable Oliver W. Wanger, the District 23 Judge assigned to the previously filed petition, be denied as 24 moot. 25 V. 26 Accordingly, the Court RECOMMENDS that the petition for writ Recommendation 27 of habeas corpus be DISMISSED without prejudice to filing in the 28 Northern District of California insofar as it addresses the 6 1 validity of Petitioner’s conviction in Santa Clara County, and be 2 DISMISSED with prejudice as duplicative insofar as Petitioner 3 challenges the 2008 decision of the Parole Board. 4 These findings and recommendations are submitted to the 5 United States District Court Judge assigned to the case, pursuant 6 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 7 the Local Rules of Practice for the United States District Court, 8 Eastern District of California. 9 being served with a copy, any party may file written objections Within thirty (30) days after 10 with the Court and serve a copy on all parties. 11 should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” 13 and filed within fourteen (14) days (plus three (3) days if 14 served by mail) after service of the objections. 15 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 16 636 (b)(1)(C). 17 objections within the specified time may waive the right to 18 appeal the District Court’s order. 19 1153 (9th Cir. 1991). Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 20 21 IT IS SO ORDERED. 22 Dated: ie14hj July 21, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 7
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