Chapman v. Warden Lebanon Correctional Institution, No. 1:2011cv00648 - Document 5 (S.D. Ohio 2011)

Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 2 Report and Recommendation. Petitioner's Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE to prosecution of his duplicative habeas petition, Maurice Chapman, Sr. v. W arden, 1:11-cv-00560. The Court DECLINES to issue a certificate of appealability with respect to the dismissal without prejudice. To the extent Petitioner would apply to proceed in forma pauperis on appeal, the Court CERTIFIES that any appeal of th is Opinion and Order would not be taken in good faith, and any application to appeal in forma pauperis thus should be denied. Signed by Judge S Arthur Spiegel on 12/8/2011. (km1) (Additional attachment(s) added on 12/8/2011: # 1 Certified Mail Receipt) (km1).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION NO. 1:11-CV-648 MAURICE CHAPMAN, Petitioner, v. OPINION AND ORDER WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent. This matter comes before the Court on the September 29, 2011 Report and Recommendation of the Magistrate Judge (doc. 2), and what we read as Petitioner's objection (doc. 4). Our Recommendation review finds of it the to Magistrate be Judge's well-reasoned and Report and detailed. Therefore, we reiterate only those portions of it necessary to give context to our ruling. Petitioner filed the instant Petition for Writ of Habeas Corpus on September 20, 2011. In evaluating whether Petitioner had paid the appropriate filing fee, proceed without prepayment of such fee, the or applied to Magistrate Judge observed that Petitioner had filed a motion for leave to proceed in forma pauperis petition. ("IFP") in connection with a separate habeas That action was commenced in the Southern District of Ohio (Cincinnati) on August 16, 2011 and is currently before the Honorable William O. Chapman, Sr. v. Bertelsman in the Warden, No. case captioned Maurice 1:11-CV-560 ("Chapman I"). Petitioner's IFP motion (Chapman I, doc. 1) was denied (Chapman I, doc. 2), as the Court found he had the financial ability to pay the full $5.00 filing The fee. Clerk of Court thereafter was instructed to administratively close the matter on the docket of the Court, with reopening permitted upon receipt of the full fee (Chapman I, doc. 2), which 09/26/2011 docket notation). was Petitioner tendered (Chapman I, Petitioner's Writ of Habeas Corpus then docketed on September 29, 2011 (Chapman I, doc. 4). Respondent moved for an extension of time, until January 27, 2012, to file his answer (Chapman I, doc. 8), which was granted (Chapman I, 10/14/2011 notation order). Ultimately, of course, the matter will be ripe for an initial report and recommendation by Magistrate Judge Bowman. It is important to note that Chapman I and the instant cause of action both challenge the same conviction and sentence on similar grounds for relief. grounds that Indeed, in more than one instance, the underpin Petitioner's original petition not only encompass those set forth in his second petition, but also are more detailed. states Justice For example, merely, (?) "GROUND THREE" " [1] ength of Center" (doc. detention 2 at 1), original petition he elaborates, in his second petition in the Hamilton County but in "GROUND TWO" of his "[s] at in the Hamilton County Justice Center from October 17, 2009 until July 7, 2011. (trial) was ineffective" (doc. 2 at 2) . When, habeas Counsel as here, duplicative, dismissal is permitted. petitions essentially are "A district court may dismiss an action when it is duplicative of another action filed in federal court." Green v. Ouarterman, No. H-08-533, (S.D. Tex. June 18, 2008) 2008 WL 2489840, (citing Remington Rand Corp. v. Business Systems, Inc., 830 F.2d 1274, 1275-76 (3d Cir. 1987)). holds true in habeas cases as well. *1 (6th Cir. Mar. 7, 1989) Cummings v. Rapelje, No. 11-cv-10239, at *1 Dismissal, however, This tenet Davis v. united States Parole Comm'n, No. 88-5905, 1989 WL 25837, 2011) . (E.D. Mich. should be without 995 i Feb. 3, prej udice petitioner's prosecution of the duplicative pending suit. v. Moore, 980 F.2d 994, *2 to a Pittman (5th Cir. 1993) (successive IFP suit dismissed without prejudice) . Having engaged in a discussed Magistrate above, therefore, Judge's Report de we and llQYQ hereby review, ADOPT for the reasons and Recommendation. AFFIRM the Petitioner's Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE to prosecution of his duplicative habeas petition, Maurice Chapman, Sr. v. Warden, No. 1:11-CV-560. We DECLINE to issue a certificate of appealability with respect to our dismissal without prejudice, because a "jurist of reason" would not find it debatable whether this Court is correct in its procedural rulings. See Slack v. McDaniel, as initially 529 U.S. 473, 484-85 (2000).1 Finally, noted, it was the lack of payment of the appropriate filing fee, and the lack of an application to proceed without prepayment of IThe Magistrate Judge correctly noted that the issue of whether Petitioner has stated any viable constitutional claim in his duplicative petition need not be evaluated when, as here, a habeas petition is dismissed on a procedural ground. See Slack, 529 U.S. at 484. such fee, that led the Magistrate Judge to discover that the instant petition was the second (and a duplicative) one filed by Petitioner. Accordingly, she made no ruling on whether Petitioner would have qualified to proceed without payment of the appropriate filing fee. Nevertheless, to the extent Petitioner would apply to so proceed on appeal, pursuant to 28 U. S. C. § 1915 (a) (3), we CERTIFY that any appeal of this Opinion and Order would not be taken in good faith, and any application pauperis thus should be denied. to appeal in See Fed. R. App. P. 24(a) (3) (A). SO ORDERED. Dated, forma ~ District Judge

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