Bernard Burton v. Craig Koenig ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 BERNARD BURTON, ) NO. CV 20-2277-JVS (AGR) ) 13 Petitioner, ) ) 14 v. ) ORDER OF DISMISSAL ) WITHOUT PREJUDICE 15 CRAIG KOENIG, Warden, ) ) 16 Respondent. ) ) 17 ) 18 On March 9, 2020, Petitioner, a state prisoner who is proceeding pro se, 19 filed a Petition for Writ of Habeas Corpus (“Petition”). 20 On April 21, 2020, Respondent filed a motion to vacate the order requiring 21 a response/answer to the Petition on the ground that Petitioner had not sought or 22 obtained authorization from the Ninth Circuit to file a second or successive 23 petition. (Dkt. No. 7.) 24 In response, Petitioner filed a motion to withdraw his Petition so that he 25 could request authorization from the Ninth Circuit to file a second or successive 26 petition. (Dkt. No. 10.) The court construes Petitioner’s motion as a motion to 27 dismiss the Petition without prejudice. 28 1 In the Ninth Circuit, Petitioner has filed an application for permission to file a 2 second or successive petition. The Ninth Circuit transferred the petition to this 3 court with instructions to proceed only on Petitioner’s Proposition 57 claim. The 4 Ninth Circuit denied the application to proceed on the ineffective assistance of 5 appellate counsel claim. (Dkt. No. 5, Burton v. Koenig, CV 20-10530 JVS 6 (AGR)). 7 This habeas case is entirely duplicative of the pending habeas action in 8 Burton v. Koenig, CV 20-10530 JVS (AGR) and asserts the same two grounds. 9 Parties generally have “no right to maintain two separate actions involving the 10 same subject matter at the same time in the same court and against the same 11 defendant.” Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 12 2007) (citation omitted). A district court has the option of dismissing the 13 duplicative action without prejudice. /d. at 692 (“Dismissal of the duplicative 14 lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, 15 promotes judicial economy and the ‘comprehensive disposition of litigation.’”) 16 (citation omitted). 17 IT IS HEREBY ORDERED that Petitioner's motion to withdraw the Petition 18 for Writ of Habeas Corpus is GRANTED and this action is dismissed without 19 prejudice as duplicative. Nothing in this order affects the disposition of Burton v. 20 Koenig, CV 20-10530 JVS (AGR), which shall proceed as ordered by the Ninth 21 Circuit. 22 IT IS FURTHER ORDERED that all pending motions in this action are 23 | denied as moot. 24 IT IS SO ORDERED. 25 J) =! Aw 26 || DATED: December 1, 2020 i Veet My ead 27 United States District Judge 28