Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-01168-J-NLS

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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. DEPT. WARDEN TOERS-BIJNS, et al. Respondents. JAMES LYNN O'HINES, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE Civil No. 08cv1168 J (NLS) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On June 30, 2008, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") along with a Motion for Leave to Proceed In Forma Pauperis. [Doc. No. 1.] On August 4, 2008, this Court granted the Motion to Proceed In Forma Pauperis and dismissed the case without prejudice and with leave to amend. [Doc. No. 3.] Petitioner filed a First Amended Petition ("FAP") on August 18, 2008. [Doc. No. 4.] DISMISSAL WITHOUT PREJUDICE In his original Petition, Petitioner stated that he was challenging convictions related to California appellate court case numbers D040670 and D052738. (See Pet. at 2.) As the Court noted in its Order on August 4, 2008, Petitioner currently has a Petition for Writ of Habeas /// /// ///
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Corpus pending in this Court in case number 08cv0698 in which he is also challenging a conviction related to California appellate court case number D040670. [Doc. No. 3.] In case number 08cv0698, the Court ordered the attorney general to respond to the Petition. A Motion to Dismiss was filed July 14, 2008, and Petitioner submitted a response to the Motion to Dismiss on July 23, 2008. (See case no. 08cv0698 [Doc. Nos. 17, 23.].) In the Court's Order dismissing the original petition in the current case [08cv1168], Petitioner was directed to clarify whether the claims Petitioner seeks to bring in this case relate to the convictions challenged in California appellate court case numbers D040670 or D052738, or indeed if those two appellate court case numbers relate to the same state court conviction. (See case number 08cv1168 [Doc. No. 3.].) Petitioner was further directed that if the claims in the current action relate to the convictions he is challenging in 08cv0698 he must file a First Amended Petition in that case which included all claims he wishes to bring with respect to that state court conviction. (Id.) In his First Amended Petition in the current case, Petitioner states that he is challenging his conviction in trial court case number SRF122463, and California appellate court case number D040670. (First Amended Petition "FAP" at 1-2.) This is the same conviction he is challenging in case number 08cv0698 (see case number 08cv0698 FAP at 1.) Petitioner raises new grounds challenging that conviction in the current petition.1 A 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). Because Petitioner is challenging the same conviction he is attacking in case number 06cv0698, the Court DISMISSES the current /// /// /// /// ///

In claim four of the current Petition, Petitioner argues that the conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to the defendant, a claim he did not raise in case number 06cv0698. (FAP at 9.)
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Petition. If Petitioner wishes to submit additional claims that relate to the conviction he is challenging in case number 06cv0698, he must submit a Second Amended Petition in that case. CONCLUSION For the foregoing reasons, the Court DISMISSES the case without prejudice. The Clerk of Court is directed to send Petitioner a blank Second Amended Petition form. IT IS SO ORDERED.

DATED: September 9, 2008 HON. NAPOLEON A. JONES, JR. United States District Judge

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