Arellano v. Brewer, No. 2:2017cv12242 - Document 3 (E.D. Mich. 2017)

Court Description: OPINION and ORDER Dismissing the Habeas Case as Duplicative, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Terrence G. Berg. (HMon)

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Arellano v. Brewer Doc. 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DIANE ARELLANO, Petitioner, Case No. 17-12242 Hon. Terrence G. Berg v. SHAWN BREWER, Respondent. OPINION AND ORDER DISMISSING THE HABEAS CASE AS DUPLICATIVE, 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 Diane Arellano (“Petitioner”) has filed a pleading concerning her state criminal convictions. In 2014, Petitioner was convicted of first-degree murder and possession of a firearm during the commission of a felony following a jury trial in Genesee County Circuit Court. She was sentenced to consecutive terms of life imprisonment without the possibility of parole plus two years imprisonment. See Offender Profile, Michigan Department of Corrections Offender Tracking Information System (“OTIS”), http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=936484. 1 Dockets.Justia.com Petitioner has already filed two federal habeas actions in this district challenging the same state convictions, which are currently pending before other judges. See Case Nos. 2:17-CV-12133, 2:17-CV-12206 (E.D. Mich.). A suit is duplicative, and subject to dismissal, if the claims, parties, and available relief do not significantly differ between the two actions. See Harrington v. Stegall, 2002 WL 373113, *2 (E.D. Mich. Feb. 28, 2002)(internal citations omitted). Because Petitioner challenges the same convictions—her only state criminal convictions—in these previously-filed cases, the Court will dismiss this habeas petition as duplicative. See Davis v. United States Parole Comm’n, 870 F.2d 657, 1989 WL 25837, *1 (6th Cir. March 7, 1989)(affirming district court dismissal of a second habeas petition as duplicative where it was “essentially the same” as the first petition). Accordingly, the Court DISMISSES this habeas case as duplicative. This dismissal is without prejudice to Petitioner’s previously filed habeas actions. Before Petitioner may appeal this decision, a certificate of appealability must issue. See 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 consti- 2 tutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim solely on procedural grounds a certificate of appealability should issue if it is shown that reasonable jurists could disagree about 1) whether the petitioner stated a valid constitutional claim, and 2) whether the court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Whether Petitioner has stated a valid constitutional claim in this petition is immaterial because any claim she has stated here is already being adjudicated through her nearly identical habeas petitions referenced above. Accordingly, the Court DENIES a certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal cannot be take in good faith. See Fed. R. App. P. 24(a). SO ORDERED. Dated: December 21, 2017 s/Terrence G. Berg TERRENCE G. BERG UNITED STATES DISTRICT JUDGE 3 Certificate of Service I hereby certify that this Order was electronically filed, and the parties and/or counsel of record were served on December 21, 2017. s/H. Monda Case Manager in the absence of A. Chubb 4

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