Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-01172-JLS-PCL

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Filed 07/31/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent. V.M. ALMAGER, Warden, v. JUNE THEPSOMBANDITH, Petitioner, ORDER: (1) DISMISSING CASE NUMBER 08cv1172 AS DUPLICATIVE OF CASE NUMBER 07cv2248; (2) DIRECTING CLERK TO APPLY $5.00 FEE PAID IN CASE NUMBER 08cv1172 TO CASE NUMBER 07cv2248; and (3) CLOSING CASE NUMBER 08cv1172 AND REOPENING CASE NUMBER 07cv2248 Civil No. 08-1172 JLS (PCL) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On November 27, 2007, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 which was assigned case number 07cv2248. The Court dismissed case number 07cv2248 on May 20, 2008, because Petitioner had failed to pay the $5.00 filing fee. (See Order dated May 20, 2008 in case no. 07cv2248 [doc. no. 9].) Petitioner was given until June 30, 2008 to pay the $5.00 filing fee. On July 1, 2008, Petitioner submitted a second Petition for Writ of Habeas pursuant to 28 U.S.C. § 2254 and paid the $5.00 filing fee. The Clerk's Office assigned the matter case number 08cv1172 JLS (PCL). ///
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08cv1172

Case 3:08-cv-01172-JLS-PCL

Document 2

Filed 07/31/2008

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Having reviewed these cases, it is apparent that Petitioner's intent in filing case number 08cv1172 was to comply with the Court's dismissal Order in case number 07cv2248. Moreover, having reviewed the petitions in both cases, is it clear they are identical. The Court may dismiss a duplicative petition as frivolous if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (citations omitted). Based on the foregoing, the Court ORDERS that: (1) Case number 08cv1172 is DISMISSED as duplicative of the petition filed in case number 07cv2248; (2) The Clerk of Court is ORDERED to apply the $5.00 filing fee Petitioner submitted in case number 08cv1172 to case number 07cv2248; and (3) The Clerk of Court is ORDERED to reopen case number 07cv2248 and close case number 08cv1172. IT IS SO ORDERED.

DATED: July 31, 2008 Honorable Janis L. Sammartino United States District Judge

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