Opinion
Civil No. 02-CV-70573-DT
February 28, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Jerome J. Harrington, ("petitioner), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence for a violation of his probation for the offense of possession of cocaine less than twenty five grams, M.C.L.A. 333.7403(2)(a)(5); M.S.A. 14.15(7403)(2)(a)(5), and being a third felony habitual offender. M.C.L.A. 769.11; M.S.A. 28.1083. For the reasons stated below, the petition for writ of habeas corpus is summarily dismissed.
I. BACKGROUND
Petitioner was convicted of possession of less than twenty five grams of cocaine and being a third felony offender and was placed on probation. People v. Harrington, 97-4241 (Wayne County Circuit Court, Criminal Division). On May 14, 1999, petitioner was arrested by the Detroit police and was charged with possession with intent to deliver less than fifty grams of cocaine. On June 1, 1999, petitioner was bound over to the Wayne County Circuit Court, Criminal Division, on this charge. On June 15, 1999, a petition and bench warrant for a violation of probation was issued against him. On September 3, 1999, petitioner was convicted of violating his probation by Judge Leonard Townsend of the Wayne County Circuit Court. On September 15, 1999, petitioner was sentenced to ten to fifteen years in prison as a fourth felony habitual offender. On June 2, 2000, petitioner was re-sentenced as a third felony habitual offender to sixty four to ninety six months in prison.
Petitioner's conviction and sentence on the probation violation were affirmed on appeal. People v. Harrington, 228783 (Mich.Ct.App. March 28, 2001); lv. den. 632 N.W.2d 142 (2001).
On February 4, 2002, petitioner filed a petition for writ of habeas corpus with the U.S. District Court for the Eastern District of Michigan, in which he challenged his probation violation conviction by raising the following claim for relief:
I. Petitioner was deprived of his liberty without due process of law where the trial judge abused his discretion and/or committed legal error where the trial court failed to present sufficient evidence at his revocation hearing to prove the essential elements of the offense charged to establish his guilt by a preponderance of the evidence.
This petition is currently pending before Judge Victoria A. Roberts. Harrington v. Stegall, U.S.D.C. 02-CV-70430-DT. A decision has not yet been rendered in that case.
On February 13, 2002, petitioner filed the instant petition with this Court, in which he challenged the same conviction and sentence for violation of probation that he is challenging in Judge Roberts' case and raised the same identical claim that he presented in the petition before Judge Roberts.
II. DISCUSSION
The instant petition for writ of habeas corpus must be dismissed because it is duplicative of the petition pending before Judge Roberts.
A suit is duplicative, and thus subject to dismissal, if the claims, parties, and available relief do not significantly differ between the two actions. Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal. 1999) (internal citations omitted). Petitioners habeas petition is subject to dismissal as being duplicative of his still pending first habeas petition, because both cases seek the same relief. Id. Because petitioner challenges the same probation violation conviction in both petitions, the Court will dismiss this second petition as being duplicative. Colon v. Smith, 2000 WL 760711, 1, fn. 1 (E.D. Mich. May 8, 2000) (Borman, J.); See also Davis v. U.S. Parole Com'n, 870 F.2d 657, 1989 WL 25837, 1 (6th Cir. March 7, 1989) (district court can properly dismiss a habeas petition as being duplicative of a pending habeas petition, where the district court finds that the instant petition is essentially the same as the earlier petition).
In the present case, the instant petition challenges the same probation violation conviction and raises the same claim and makes the same legal arguments as the petition in the case pending before Judge Roberts. A district court is permitted to take judicial notice of its own files and records in a habeas proceeding. See Van Woudenberg ex. rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000). This Court may therefore take judicial notice of its own court documents and records in determining that the current habeas petition is duplicative. See Lancaster v. Fairman, 1985 WL 990, 1 (N.D. Ill. April 25, 1985). Accordingly, the matter will be dismissed.
III. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is SUMMARILY DISMISSED.