Opinion
No. EDCV 16-2221-DSF(AJW)
06-13-2017
EMMA MARYANN MARGARET LOVETT, Petitioner, v. DEBORAH K. JOHNSON, Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE
On October 21, 2016, petitioner filed this petition challenging her 2014 conviction of one count of forcible sexual penetration and four counts of sexual penetration or oral copulation. [Petition at 2]. Respondent filed a motion to dismiss the petition on the ground that it is duplicative of the petition filed in Case No. EDCV 16-2286-R(AJW) ("the second case").
In the second case, a report and recommendation was issued addressing each of the claims presented in the petition and recommending that it be denied. See Case No. EDCV 16-2286-R(AJW). The report and recommendation was accepted, and on January 3, 2017, judgment was entered denying the petition.
The petition filed in the present case appears to be a copy of the petition filed in the second case. The petitions, which were signed on the same date, challenge the same conviction and sentence, and raise the same claims for relief. Because this petition is identical to the one considered and rejected in Case No. EDCV 16-2286-R(AJW), it is dismissed without prejudice. See Pierce v. Obama, 2015 WL 502321, at *1 (E.D. Cal. Feb. 5, 2015) (noting that the court has the discretion to dismiss a duplicative later-filed action); see generally Slack v. McDaniel, 529 U.S. 473, 478 (2000) (stating that federal courts retain broad discretion to control their dockets and "prevent duplicative or unnecessary litigation").
Finally, in light of this order, petitioner's motion for leave to file an amended petition [Dkt. 14] and her motions for an extension of time [Dkts. 13, 21] are denied.
Petitioner's proposed amended complaint seeks to add an Eighth Amendment Claim. [Dkt. 14]. The petition filed in the second case was construed as including an Eighth Amendment claim, and the report and recommendation addressed that claim. Thus, the claim petitioner seeks to add in this case already has been considered and rejected on its merits. --------
It is so ordered. Dated: 6/13/17
/s/_________
Dale S. Fischer
United States District Judge
JUDGMENT
It is hereby adjudged that the petition for a writ of habeas corpus is dismissed without prejudice. Dated: __________
/s/_________
Dale S. Fischer
United States District Judge