Arellano v. Brewer
Filing
3
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)
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?