Opinion
24-11464
12-10-2024
Joseph Petersmark, Petitioner, v. John Christiansen, Respondent.
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO CONSOLIDATE (ECF No. 10), DISMISSING CASE WITHOUT PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
F. Kay Behm, United States District Judge
Petitioner Joseph Petersmark, currently in the custody of the Michigan Department of Corrections, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now before the Court is Respondent's Motion to Consolidate. For the reasons discussed, the Court will deny the motion, dismiss the petition without prejudice, and decline to issue a certificate of appealability.
I.
In 2018, Petersmark pleaded no contest in Oakland County Circuit Court, Case No. 2018-265948-FH, to one count of extortion, Mich. Comp. Laws § 750.213. He was sentenced to 37 months to 20 years in prison.
In April 2024, Petersmark filed a federal habeas corpus petition challenging the extortion conviction. Petersmark v. Christiansen, No. 24-11139. In June 2024, Petersmark filed the instant petition for habeas corpus relief. This second petition challenges the same extortion conviction challenged in the first petition, albeit on different grounds.
This case was originally assigned to the Honorable Robert J. White. The matter was transferred to the undersigned district judge as a companion to Case Number 24-cv-11139. See Order Regarding Reassignment of Companion Case (ECF No. 11).
A petitioner may not challenge the same conviction and sentence in two cases. See, e.g., Gamet v. Howard, No. 23-CV-11102, 2023 WL 5001449, at *1 (E.D. Mich. Aug. 4, 2023). The case will be dismissed without prejudice because it is duplicative of the earlier-filed case. Jessie v. Michigan Att'y Gen., No. 23-11471, 2024 WL 2839278, at *2 (E.D. Mich. May 13, 2024).
The dismissal of this case as duplicative of Case No. 24-11139 moots Respondent's motion to consolidate.
II.
Before a petitioner may appeal the dismissal or denial of a habeas corpus petition, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, in order to be entitled to a certificate of appealability, a petitioner must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, reasonable jurists would not debate the correctness of the Court's procedural ruling. The Court therefore denies a certificate of appealability.
III.
For the reasons explained above, the Court DISMISSES the case without prejudice and DENIES a certificate of appealability.
The Court further DENIES leave to proceed in forma pauperis on appeal as an appeal from this non-prejudicial dismissal cannot be taken in good faith. See Fed. R. App. P. 24(a).
The Court further DENIES Respondent's Motion to Consolidate (ECF No. 10) as moot.
SO ORDERED.