Doss #531147 v. Palmer, No. 1:2013cv00563 - Document 4 (W.D. Mich. 2013)

Court Description: OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TIMMY JUNIOR DOSS, Petitioner, v. Case No. 1:13-cv-563 Honorable Janet T. Neff CARMEN PALMER, Respondent. _______________________________/ OPINION This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether 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. Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to screen out petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it is duplicative of another action pending before the Court. Factual Allegations Petitioner Timmy Junior Doss challenges a judgment of conviction and sentence entered in Kalamazoo County Court on July 19, 2010. In another action filed approximately a month before this one, Petitioner submitted a habeas application challenging the same criminal judgment, and raising substantially the same grounds for relief. See Doss v. Palmer, No. 1:13-cv417 (W.D. Mich.). Thus, the instant action is duplicative and will be dismissed for that reason. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner s application without prejudice pursuant to Rule 4 because it is duplicative of another action before the Court. Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court -2- was correct in its procedural ruling. Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed the petition. Therefore, the Court denies Petitioner a certificate of appealability. A Judgment and Order consistent with this Opinion will be entered. Dated: June 19, 2013 /s/ Janet T. Neff Janet T. Neff United States District Judge -3-