McGowan v. Rapelje, No. 2:2013cv12960 - Document 3 (E.D. Mich. 2013)

Court Description: OPINION and ORDER Dismissing Duplicative 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Paul D. Borman. (DTof)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BOBBY PRINCE MCGOWAN, #727389, Petitioner, v. CASE NO. 2:13-CV-12960 HONORABLE PAUL D. BORMAN LLOYD RAPELJE, Respondent. __________________________________/ OPINION AND ORDER DISMISSING DUPLICATIVE HABEAS CASE, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Bobby Prince McGowan ( Petitioner ) challenges his convictions for first-degree murder, assault with intent to murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony, which were imposed in the Oakland County Circuit Court in 2011. Petitioner claims that he was denied the effective assistance of trial counsel. Petitioner has already filed a habeas action challenging the same convictions with this Court, which is pending before another district judge. See McGowan v. Rapelje, Case No. 13-CV-12636 (Cohn, J.). Accordingly, the instant action must be dismissed as duplicative. A suit is duplicative, and subject to dismissal, if the claims, parties, and available relief do not significantly differ between the two actions. See, e.g., Barapind v. Reno, 72 F. Supp. 2d 1132, 1145 (E.D. Cal. 1999) (internal citations omitted). Such is the case here. In fact, it appears that Petitioner was attempting to file additional copies of his habeas petition to correct a filing deficiency, but the documents (which did not include the existing case number) were filed as a new case. In any event, because Petitioner challenges the same convictions in both petitions and raises the same claims, the Court will dismiss this second action as duplicative. See Harrington v. Stegall, No. 02-cv70573, 2002 WL 373113, *2 (E.D. Mich. Feb. 28, 2002); Colon v. Smith, No. 99-74565, 2000 WL 760711, *1, n. 1 (E.D. Mich. May 8, 2000); see also Davis v. United States Parole Comm n, 870 F.2d 657, 1989 WL 25837, *1 (6th Cir. March 7, 1989) (court may dismiss habeas case as duplicative of pending case when the second petition is essentially the same as the first). Accordingly, the Court DISMISSES the instant case as duplicative. This dismissal is without prejudice to the habeas petition filed in Case No. 13-CV-12636. The Court further DIRECTS the Clerk s Office to re-file the pleadings submitted for this case in Case No. 13-CV-12636. This case is closed. Before Petitioner may appeal the Court s decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies relief on procedural grounds without addressing the merits, a certificate of appealability should issue if reasonable jurists would find it debatable whether the petitioner states a 2 valid claim of the denial of a constitutional right, and reasonable jurists would find it debatable whether the court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists could not debate the correctness of the Court s procedural ruling. Accordingly, the Court DENIES a certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on appeal as any appeal would be frivolous and cannot be take in good faith. See Fed. R. App. P. 24(a). IT IS SO ORDERED. s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: July 17, 2013 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 17, 2013. s/Deborah Tofil Case Manager 3

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