Lucero v. Davis

Full title: SAMUEL THOMAS LUCERO, Petitioner, v. BARRY D. DAVIS, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Mar 21, 2006

Case Number. 06-10248 (E.D. Mich. Mar. 21, 2006)

Opinion

Case Number. 06-10248.

March 21, 2006

OPINION AND ORDER OF SUMMARY DISMISSAL WITHOUT PREJUDICE AND REVOKING ORDER REQUIRING RESPONSIVE PLEADING

MARIANNE BATTANI, District Judge

Petitioner Samuel Thomas Lucero, a state prisoner currently incarcerated at the Newberry Correctional Facility in Newberry, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. This petition is identical to a habeas corpus petition already pending in this Court. The Court, therefore, shall dismiss the pending petition.

On September 2, 2005, Petitioner filed a petition for a writ of habeas corpus in this Court, challenging the constitutionality of a second degree murder conviction obtained in Macomb County Circuit Court. That case is assigned to the Honorable Bernard A. Friedman. Lucero v. Davis, No. 05-73402. The petition was originally dismissed without prejudice on Petitioner's motion. But, proceedings have resumed in that matter as Respondent has filed a response in opposition to the petition and the supporting Rule 5 materials. Petitioner has filed a reply brief.

On December 26, 2005, Petitioner filed the instant petition for a writ of habeas corpus. This petition challenges the same conviction challenged in the petition currently pending before Chief Judge Friedman and raises claims that are, in all material respects, identical to those raised in the earlier-filed petition. Therefore, the instant petition is duplicative and must be dismissed. See Davis v. U.S. Parole Commission, 1989 WL 25837 (6^th Cir. 1989); Moates v. Barkley, 147 F.3d 207, 209 (2^nd Cir. 1998). To the extent that Petitioner wishes to raise additional claims not already before the Court in the earlier-filed petition, Petitioner may seek leave of Court to do so in accordance with the requirements of Federal Rule of Civil Procedure 15.

On January 30, 2006, the Court issued an Order Requiring Responsive Pleading. Given that the Court has determined that the pending petition is subject to summary dismissal, the Court shall revoke that Order.

Accordingly, for the reasons set forth above, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Court's Order Requiring Responsive Pleading issued January 30, 2006 is REVOKED.