(HC) Morgan v. Jusino ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY MORGAN, No. 2:20-cv-00605 TLN GGH P 12 Petitioner, 13 v. ORDER 14 T. TUSINO, Warden, 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se with an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241. Petitioner’s habeas petition seeks to challenge his 2019 19 conviction in the United States District Court for the Eastern District of California for possession 20 of a firearm by a felon. Petitioner has now filed a Notice of Erratum (ECF Nos. 8, 9), Motion for 21 Issuance of Subpoena Duces Tucem (ECF Nos. 10, 11), Motion for Reconsideration of the 22 undersigned’s May 1, 2020 order (ECF No. 12), and Motion for Emergency Hearing on 23 Petitioner’s Habeas Petition (ECF No. 13). 24 Motion for Reconsideration 25 On April 1, 2020, the undersigned issued findings and recommendations recommending 26 petitioner’s habeas petition be dismissed as duplicative based on petitioner’s pending habeas 27 petition in Morgan v. Tusino, 2:20-cv-00603-CKF challenging the same 2019 conviction. ECF 28 No. 5. Petitioner filed a motion to amend his habeas petition, however, the proposed amended 1 petition challenged the same 2019 conviction as his previous petition. Accordingly, on May 1, 2 2020, the undersigned denied petitioner’s motion to amend. ECF No. 7. The undersigned further 3 reminded petitioner he may file his motions or requests relating to his 2019 conviction in his 4 pending habeas action in Morgan v. Tusino, 2:20-cv-00603-CKD. Id. Subsequently thereafter, 5 petitioner filed the pending motion for reconsideration of the undersigned’s May 1 , 2020 order 6 denying petitioner’s motion to file an amended petition. ECF Nos. 12. In his motion for 7 reconsideration, petitioner argues his motion to amend sought to address unintentional errors 8 made in the original petition and requests the court apply less stringent pleading standards in 9 reconsidering its denial. However, petitioner’s attempts to amend his petition fail to address that 10 petitioner seeks to pursue on a duplicate habeas action. Petitioner has failed to demonstrate any 11 new or different facts or circumstances which did not exist or were not shown upon the prior 12 motion. See E.D. Local Rule 230(j). Accordingly, the motion for reconsideration is denied. 13 Motion for Issuance of Subpoena Duces Tecum 14 Petitioner is also seeking issuance of subpoenas duces tecum for documents relating to his 15 federal criminal case, including his plea agreement, presentence investigation report, “order in 16 criminal sentence procedure,” and the sentencing hearing transcript, ECF Nos. 10, 11. “The writ 17 of habeas corpus is not a proceeding in the original criminal prosecution but an independent civil 18 suit.” Riddle v. Dyche, 262 U.S. 333, 335-336, 43 S.Ct. 555, 555, 67 L.Ed. 1009 (1923). “A 19 habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a 20 matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1796–97, 138 21 L. Ed. 2d 97 (1997). Rule 6 of the Rules Governing § 2254 Cases provides discovery, at the 22 court’s discretion, and upon a showing of good cause. Id. However, here, discovery would not be 23 appropriate given this action is a duplicative later-filed action. Petitioner is reminded that any 24 motions are appropriately filed in his currently pending habeas case in Morgan v. Tusino, 2:20- 25 cv-00603-CKD. 26 //// 27 //// 28 //// 1 Motion for Emergency Hearing 2 In addition, petitioner has filed a motion for an emergency hearing on his federal habeas 3 petition. ECF No. 13. It appears petitioner is seeking an immediate evidentiary hearing on his 4 habeas petition. However, because petitioner’s action is being dismissed as duplicative, an 5 emergency hearing on the habeas petition is not warranted in this action. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Petitioner’s motion for reconsideration of the undersigned’s May 1, 2020 order (ECF 8 No. 12) is denied; 9 2. Petitioner’s motion for issuance of subpoena duces tecum (ECF No. 10) is denied; and 10 3. Petitioner’s motion for emergency hearing (ECF No. 13) is denied. 11 Dated: June 10, 2010 /s/ Gregory G. Hollows 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28