Free Order Dismissing Case as Frivolous - District Court of California - California

Case 3:08-cv-01137-JAH-LSP

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Filed 07/03/2008

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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 v. ROBERT J. HERNANDEZ, Warden, Respondent. Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. REQ UEST TO PROCEED IN FORMA PAUPERIS According to his prison trust account statement, Petitioner has no funds on account at the California correctional institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis,. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee. PETITION IS DUPLICATIVE 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). Here, Petitioner has filed two identical petitions with this Court. The Petition in this case was filed on June 2, 2008. An identical first amended petition was filed in RAFAEL JASSO, Petitioner, ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION AS DUPLICATIVE Civil No. 08-1137 LAB (PCL) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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08cv1137

Case 3:08-cv-01137-JAH-LSP

Document 3

Filed 07/03/2008

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case number 08cv0548 JAH (LSP) on June 2, 2008. In that case the Court has set a briefing schedule (See Order filed June 9, 2008, Case No. 08cv00548 JAH (LSP) [Doc. No. 6].) CONCLUSION Based on the foregoing, the Court GRANTS Petitioner's request to proceed in forma pauperis and DISMISSES this case because the Petition is duplicative of that filed in case number 08cv0548. The Clerk shall close the file. IT IS SO ORDERED.

DATED: July 3, 2008

H ONORABLE L ARRY A LAN B URNS United States District Judge

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