(HC)Jones v. Clark, No. 1:2010cv01312 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition as Duplicative and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sandra M. Snyder on 1/20/11. Referred to Judge Ishii. (Verduzco, M)
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(HC)Jones v. Clark Doc. 6 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 WILLIE JAMES JONES, 9 Petitioner, 10 11 12 v. KEN CLARK, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01312–AWI-SMS-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS DUPLICATIVE (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 15 Petitioner is a state prisoner proceeding pro se and in 16 forma pauperis with a petition for writ of habeas corpus pursuant 17 to 28 U.S.C. § 2254. The matter has been referred to the 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 19 Rules 302 and 304. Pending before the Court is the petition, 20 which was filed on July 27, 2010. 21 I. Screening the Petition 22 Rule 4 of the Rules Governing § 2254 Cases in the United 23 States District Courts (Habeas Rules) requires the Court to make 24 a preliminary review of each petition for writ of habeas corpus. 25 The Court must summarily dismiss a petition "[i]f it plainly 26 appears from the petition and any attached exhibits that the 27 petitioner is not entitled to relief in the district court....” 28 1 Dockets.Justia.com 1 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 2 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 3 1990). 4 grounds of relief available to the Petitioner; 2) state the facts 5 supporting each ground; and 3) state the relief requested. 6 Notice pleading is not sufficient; rather, the petition must 7 state facts that point to a real possibility of constitutional 8 error. 9 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 Allison, 431 U.S. 63, 75 n. 7 (1977)). 11 that are vague, conclusory, or palpably incredible are subject to 12 summary dismissal. 13 Cir. 1990). 14 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 15 corpus either on its own motion under Habeas Rule 4, pursuant to 16 the respondent's motion to dismiss, or after an answer to the 17 petition has been filed. 18 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 19 (9th Cir. 2001). 20 21 22 II. Advisory Committee Notes to Habeas Rule Duplicative Petitions A. Background Petitioner, an inmate of the California State Prison at 23 Corcoran, is serving a sentence of fifteen (15) years to life 24 with the possibility of parole imposed by the San Bernardino 25 County Superior Court in 1989. 26 challenges the decision of the California Board of Prison 27 Hearings rendered on March 26, 2009, denying Petitioner parole 28 for seven years. (Pet. 1.) (Pet. 3-6, 170.) 2 In the petition, he 1 Petitioner has previously filed another petition concerning 2 this decision. 3 filed documents in Willie James Jones v. K. Clark, Warden, case 4 number 1:10-cv-01297-LJO-DLB-HC.1 5 filed on July 21, 2010, Petitioner challenges the same decision 6 rendered by the state parole board on March 26, 2009. 7 and Rec. to Deny Pet., doc. 13, 1.) 8 essentially the same due process issue concerning the alleged 9 absence of evidence to support the decision as in the later The Court takes judicial notice of its docket and In that petition, which was (Findings Petitioner raises 10 petition that is the subject of this order. 11 respect to the status of that proceeding, the matter has been 12 fully briefed, and findings and recommendations to deny the 13 petition on the merits have issued. 14 well along the path towards a final disposition. 15 B. (Id. at 3-9.) With The case thus appears to be Legal Standards 16 “After weighing the equities of the case, the district court 17 may exercise its discretion to dismiss a duplicative, later-filed 18 action, to stay that action pending resolution of the previously 19 filed action, to enjoin the parties from proceeding with it, or 20 to consolidate both actions.” 21 Health Services, 487 F.3d 684, 688 (9th Cir. 2007). 22 generally have ‘no right to maintain two separate actions 23 involving the same subject matter at the same time in the same 24 court and against the same defendant.’” Adams v. California Dept. of “Plaintiffs Adams, 487 F.3d at 688 25 26 27 28 1 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9 th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9 th Cir. 1981). 3 1 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)) 2 (en banc). 3 In assessing whether a second action is duplicative of the 4 first, the Court examines whether the causes of action, relief 5 sought, and the parties or privies to the action are the same. 6 Adams, 487 F.3d at 689. 7 First, the Court must examine whether the causes of action 8 in the two suits are identical pursuant to the transaction test, 9 developed in the context of claim preclusion. Id. at 689. 10 “Whether two events are part of the same transaction or series 11 depends on whether they are related to the same set of facts and 12 whether they could conveniently be tried together.” 13 applying the transaction test, the Court examines four criteria: 14 1) whether rights or interests established in the prior judgment 15 would be destroyed or impaired by prosecution of the second 16 action; 2) whether substantially the same evidence is presented 17 in the two actions; 3) whether the two suits involve infringement 18 of the same right; and 4) whether the two suits arise out of the 19 same transactional nucleus of facts. 20 Id. In Second, the Court determines whether the respondents are the 21 same or in privity. 22 which fit under the title of “virtual representation,” the 23 necessary elements of which are an identity of interests and 24 adequate representation.” 25 features of a virtual representation relationship include a close 26 relationship, substantial participation, and tactical 27 maneuvering.” 28 Privity includes an array of relationships Adams, 487 F.3d at 691. “Additional Adams, 487 F.3d at 691. A plaintiff is required to bring at one time all of the 4 1 claims against a party or privies relating to the same 2 transaction or event. 3 discretion to dismiss a duplicative complaint with prejudice in 4 order to promote judicial economy and the comprehensive 5 disposition of litigation, protect the parties from vexatious and 6 expensive litigation, and serve the societal interest in bringing 7 an end to disputes. 8 9 C. Adams, 487 F.3d at 693-94. The Court has Adams, 487 F.3d at 692. Analysis The instant petition challenges the same parole decision as 10 that being litigated in the previously filed and currently 11 pending petition in case number 1:10-cv-01297-LJO-DLB. 12 Petitioner also seeks the same relief. 13 joined and briefed in the other proceeding, and the Magistrate 14 Judge has issued a decision, subject to only the filing of 15 objections and the District Judge’s consideration of the 16 findings, recommendations, and objections. 17 The issues have been Therefore, the undersigned Magistrate Judge will recommend 18 that the Court exercise its discretion to dismiss the instant 19 petition as duplicative. 20 pursue his remedies with respect to the decision in question, 21 Petitioner must do so in the original case. To the extent that Petitioner seeks to 22 III. 23 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 24 appealability, an appeal may not be taken to the court of appeals 25 from the final order in a habeas proceeding in which the 26 detention complained of arises out of process issued by a state 27 court. 28 U.S. 322, 336 (2003). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 5 1 only if the applicant makes a substantial showing of the denial 2 of a constitutional right. 3 petitioner must show that reasonable jurists could debate whether 4 the petition should have been resolved in a different manner or 5 that the issues presented were adequate to deserve encouragement 6 to proceed further. 7 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 8 certificate should issue if the Petitioner shows that jurists of 9 reason would find it debatable whether the petition states a 10 valid claim of the denial of a constitutional right and that 11 jurists of reason would find it debatable whether the district 12 court was correct in any procedural ruling. 13 529 U.S. 473, 483-84 (2000). 14 conducts an overview of the claims in the habeas petition, 15 generally assesses their merits, and determines whether the 16 resolution was debatable among jurists of reason or wrong. 17 It is necessary for an applicant to show more than an absence of 18 frivolity or the existence of mere good faith; however, it is not 19 necessary for an applicant to show that the appeal will succeed. 20 Miller-El v. Cockrell, 537 U.S. at 338. § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 21 A district court must issue or deny a certificate of 22 appealability when it enters a final order adverse to the 23 applicant. Id. 24 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 25 debate whether the petition should have been resolved in a 26 different manner. 27 of the denial of a constitutional right. 28 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 6 Accordingly, the Court 1 IV. 2 Accordingly, it is RECOMMENDED that: 3 1) The petition be DISMISSED with prejudice as duplicative; 2) The Court DECLINE to issue a certificate of 4 and 5 6 Recommendation appealability; and 7 3) 8 These findings and recommendations are submitted to the 9 United States District Court Judge assigned to the case, pursuant The Clerk be DIRECTED to close the action. 10 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 11 the Local Rules of Practice for the United States District Court, 12 Eastern District of California. 13 being served with a copy, any party may file written objections 14 with the Court and serve a copy on all parties. 15 should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendations.” 17 and filed within fourteen (14) days (plus three (3) days if 18 served by mail) after service of the objections. 19 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 20 636 (b)(1)(C). 21 objections within the specified time may waive the right to 22 appeal the District Court’s order. 23 1153 (9th Cir. 1991). 24 IT IS SO ORDERED. 25 Dated: icido3 Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file January 20, 2011 Martinez v. Ylst, 951 F.2d /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 7
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