United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITIONER’S
MOTIONS TO GRANT THE WRIT OF HABEAS CORPUS OR TO ORDER A
RESPONSIVE PLEADING (ECF NOS. 4 AND 5), (2) GRANTING
PETITIONER’S MOTION FOR A STATUS REPORT (ECF NO. 6),
AND (3) DISMISSING THE HABEAS PETITION (ECF NO. 1) AS
CORBETT O’MEARA, UNITED STATES DISTRICT JUDGE
matter has come before the Court on petitioner Derrick Lee
Smith’s pro se habeas corpus petition under 28
U.S.C. § 2254. The pleading challenges
Petitioner’s plea-based convictions for two counts of
kidnaping, Mich. Comp. Laws § 750.349, and six counts of
criminal sexual conduct in the first degree, Mich. Comp. Laws
§ 750.520b(1)(c). In 2008, the trial court sentenced
Petitioner to eight concurrent terms of twenty-two and a half
to seventy-five years in prison. Petitioner appealed his
convictions and sentence, but the Michigan Court of Appeals
denied leave to appeal “for lack of merit in the
grounds presented,” People v. Smith, No.
294843 (Mich. Ct. App. Jan. 4, 2010), and on May 25, 2010,
the Michigan Supreme Court denied leave to appeal because it
was not persuaded to review the issues, People v.
Smith, 486 Mich. 929; 781 N.W.2d 818 (2010) (table).
2010, Petitioner filed a pro se habeas petition in
which he challenged the same kidnaping and
criminal-sexual-conduct convictions that are the subject of
this case. The Court ultimately denied relief. See Smith
v. Bauman, No. 5:10-cv-10052, Op. and Order Denying the
Amended Pet. for Writ of Habeas Corpus (E.D. Mich. Mar. 9,
filed several post-judgment motions in that case, including
one that he titled “Motion for Leave to File Motion for
Granting Writ of Habeas Corpus Based on New Claims . . .
.” The motion sought to have the Court consider the
following new claims: (1) Petitioner’s plea and
sentence are invalid because the trial court failed to inform
Petitioner that he would be sentenced to lifetime electronic
monitoring; and (2) the trial court miscalculated the
sentencing guidelines. The Court construed the motion as a
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b) and then transferred the motion to the Sixth
Circuit Court of Appeals as a second or successive habeas
Sixth Circuit subsequently ruled that, because Petitioner
filed his motion before the time to appeal the denial of his
habeas petition expired, the motion was not a second or
successive habeas petition and that this Court should have
ruled on the merits of Petitioner’s motion as a motion
to amend. The Sixth Circuit vacated this Court’s order
transferring Petitioner’s motion to amend to the Sixth
Circuit and remanded the case to this Court for consideration
of the motion on its merits. See In re Derrick Lee
Smith, No. 16-1616 (6th Cir. Apr. 10, 2017). In the
meantime, Petitioner commenced this action by filing a habeas
corpus petition raising the same issues that are now before
the Court on remand from the Sixth Circuit in case number
filing of multiple federal actions arising out of the same
facts is strongly discouraged, and plaintiffs take such a
course at the peril that the adjudication of one case will
have preclusive effect on the other.” Twaddle v.
Diem, 200 F. App’x 435, 439 (6th Cir. 2006).
Lawsuits are duplicative if they “involve ‘nearly
identical parties and issues.’ ” Baatz v.
Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th
Cir. 2016) (quoting Certified Restoration Dry Cleaning
Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir.
2007) (quoting Zide Sport Shop of Ohio v. Ed Tobergte
Assoc., Inc.,16 F. App’x 433, 437 (6th Cir.
2001)). When faced with a duplicative suit, a federal court
may exercise its discretion to stay or dismiss the suit
before it, allow both cases to proceed, or enjoin the parties
from proceeding in the other suit. Twaddle, 200 F.
App’x at 438.
“[S]imple dismissal of the second suit is [a] common
disposition because plaintiffs have no right to maintain two
actions on the same subject in the same court, against the
same defendant at the same time.” Curtis v.
Citibank, N.A., 226 F.3d 133, 138–39 (2d Cir.
2000); see also Missouri v. Prudential Health Care Plan,
Inc., 259 F.3d 949, 953–54 (8th Cir.2001) (joining
other courts that have held a district court may dismiss one
of two identical pending actions).
habeas petition in this case challenges the same convictions
and sentence that are currently under consideration on
post-judgment review in case number 5:10-cv-11052. Petitioner
is not entitled to maintain two actions on the same subject
in the same court at the same time. Id. The Court,
therefore, summarily DISMISSES the habeas petition in this
case (ECF No. 1) as duplicative of the motion pending before
the Court in case number 5:10-cv-11052.
Petitioner’s pending motions in this case, the Court
denies the motions to grant the writ of habeas corpus or to
order a responsive pleading (ECF Nos. 4 and 5), but grants