Free Order Dismissing Case - District Court of California - California

Case 3:07-cv-02863-MMC

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Filed 06/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSE YBARRA, ) ) Petitioner, ) ) v. ) ) ROBERT AYERS, Warden, ) ) Respondent. ) ______________________________ ) No. C 07-2863 MMC (PR) ORDER OF DISMISSAL; DENYING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2)

On June 1, 2007, petitioner, a California prisoner proceeding pro se, filed the abovetitled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2005 decision by the California Board of Prison Hearings ("BPH") to deny him parole. The instant petition is an identical copy of a petition filed by petitioner two days earlier, on May 30, 2007, in an earlier-filed habeas action, Ybarra v. Ayers, No. C 07-2802 MMC (PR), which action currently is pending. A complaint that merely repeats pending or previously litigated claims is frivolous and may be dismissed sua sponte. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988); see also 28 U.S.C. § 2244(b)(3)(A) (providing second or successive petition may not be filed in district court unless petitioner first obtains from United States Court of Appeals order authorizing such petition). As the instant petition is identical to petitioner's earlier-filed petition, the instant action is hereby DISMISSED as duplicative.

Case 3:07-cv-02863-MMC

Document 3

Filed 06/15/2007

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In light of the dismissal, the application to proceed in forma pauperis is hereby DENIED, and no fee is due. This order terminates Docket No. 2. The Clerk shall close the file. IT IS SO ORDERED. DATED: June 15, 2007 _________________________ MAXINE M. CHESNEY United States District Judge

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