Opinion
Case No. C14-1632 JCC-BAT
11-14-2014
MICHAEL THOMAS THRASHER, Petitioner, v. DEAN MASON, Respondent.
REPORT AND RECOMMENDATON
Petitioner Michael Thomas Thrasher requests that the Court dismiss the 28 U.S.C. § 2254 petition filed herein on October 17, 2014. Dkt. 7. The Court recommends that the petition be dismissed with prejudice because it is duplicative, that the pending application to proceed in forma pauperis (Dkt. 1) be denied as moot, and a certificate of appealability denied.
DISCUSSION
Pro se petitioner Michael Thomas Thrasher petitions for 28 U.S.C. § 2254 relief from his 1992 conviction for second degree assault with sexual motivation. Dkt. 1-1. His motion for leave to proceed in forma pauperis is pending. Dkt. 5. On October 8, 2014, Mr. Thrasher, proceeding pro se and in forma pauperis, filed a 28 U.S.C. § 2254 petition for relief from this same conviction in Thrasher v. Russell, No. 14-1553 RSL-BAT. Dkt. 6 therein. The Court directed service of the petition on October 10, 2014 and counsel for Mr. Russell filed a notice of Appearance on October 20, 2014. Dkt. 10. The matter is still pending.
Because the petition filed in this case is essentially the same petition, involving the same questions of law and fact, as the petition Mr. Thrasher previously filed in Case No. 14-1553, the Court ordered Mr. Thrasher to show cause why the petition in this case should not be dismissed as duplicative. Dkt. 6. By letter received by the Clerk on November 12, 2014, Mr. Thrasher states that the petition should be dismissed as it is duplicative. Dkt. 7.
Federal Rule of Civil Procedure Rule 41(a)(1) allows a party to dismiss an action without leave of court prior to an answer or summary judgment motion being filed. Here, no adverse party has yet been served with the habeas petition in this action and the action is clearly duplicative. This Court therefore recommends that this matter be DISMISSED WITH PREJUDICE. If this recommendation is adopted, the Court also recommends that Mr. Thrasher's application to proceed in forma pauperis (Dkt. 1) be DENIED as moot.
CERTIFICATE OF APPEALABILITY
A prisoner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of the petition only after obtaining a certificate of appealability ("COA") from a district or circuit judge. A COA may be issued only where a petitioner has made "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A prisoner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Under this standard, the Court finds that no reasonable jurist would disagree that Mr. Thrasher's petition is duplicative and should be dismissed. Mr. Thrasher should address whether a COA should issue in his written objections, if any, to this Report and Recommendation.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed and served upon all parties no later than Friday, December 5, 2014. The Clerk should note the matter for Wednesday, December 10, 2014, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed five (5) pages. The failure to timely object may affect the right to appeal.
DATED this 14th day of November, 2014.
/s/_________
BRIAN A. TSUCHIDA
United States Magistrate Judge