-EFB (TEMP)(HC) Jose H. Magana-Torres v. Larry Small, No. 2:2010cv02712 - Document 17 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/16/2011 RECOMMENDING that the 16 motion to dismiss be granted and this action be dismissed w/out prejudice. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)
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-EFB (TEMP)(HC) Jose H. Magana-Torres v. Larry Small Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSE H. MAGANA-TORRES, 11 Petitioner, 12 vs. 13 No. CIV-S-10-2712 MCE EFB (TEMP) P LARRY SMALL, 14 Respondent. / 15 16 FINDINGS AND RECOMMENDATIONS Petitioner, a state prisoner proceeding without counsel in this case, has filed an 17 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. 18 Respondent has filed a motion to consolidate or, in the alternative, to dismiss it. Respondent 19 argues that this petition is duplicative of the petition pending in Case No. CIV S-10-2669 WBS 20 CMK, filed September 30, 2010, wherein petitioner challenges his state court conviction through 21 the assistance of his counsel. Petitioner has not responded to the motion to consolidate or 22 dismiss the instant petition. 23 A suit is duplicative if the “claims, parties and available relief do not significantly differ 24 between the two actions.” Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal.1999) (citation 25 omitted). “When a complaint involving the same parties and issues has already been filed in [a] 26 federal district court, the court has discretion to abate or dismiss the second action.” Welch v. 1 Dockets.Justia.com 1 Board of Prison Terms, 2008 WL 4000474 at *2 (E.D. Cal.) (citation omitted). The court finds 2 that dismissal of the second action is the proper course here. 3 4 IT IS HEREBY RECOMMENDED that the motion to dismiss, Dckt. No. 16, be granted and this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 12 his objections petitioner may address whether a certificate of appealability should issue in the 13 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 14 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 15 enters a final order adverse to the applicant). 16 DATED: May 16, 2011. 17 18 19 20 21 22 23 24 25 26 2