Dunsmore v. Gore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 20cv2021 LAB (RBB) 12 Petitioner, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS [ECF No. 2] AND DISMISSING 14 GORE, et al., PETITION WITHOUT PREJUDICE 15 Respondents. AS DUPLICATIVE 16 17 Petitioner is a California prisoner serving a sentence of 22 years in state prison as a 18 result of a March 10, 2010 conviction and June 3, 2010 sentence in San Diego Superior 19 Court Case number SCS 215653, is currently detained at the San Diego County Jail 20 awaiting resentencing and is proceeding pro se with a Petition for a Writ of Habeas Corpus 21 pursuant to 28 U.S.C. § 2254.1 (ECF No. 1.) On October 27, 2020, Petitioner filed a 22 23 24 1 With respect to the length of Petitioner’s sentence and dates of conviction and sentence, 25 the Court takes judicial notice of the abstract of judgment against Petitioner, which was previously filed as a lodgment in a separate habeas corpus proceeding in this district. (ECF 26 No. 28-2 at 42-45, CT 126-29, in S.D. Cal. Civil Case No. 13cv1193-GPC-PCL); see 27 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other 28 1 motion for leave to proceed in forma pauperis along with a copy of his trust account 2 statement. (ECF No. 2.) For the reasons discussed below, the Court GRANTS Petitioner’s 3 motion for leave to proceed in forma pauperis [ECF No. 2] and DISMISSES the Petition 4 as duplicative of the petition previously filed in S.D. Cal. Civil Case No. 20cv1518-BAS- 5 KSC. 6 MOTION TO PROCEED IN FORMA PAUPERIS 7 Upon review of Petitioner’s motion and accompanying trust account statement, 8 Petitioner has $1.94 on account at the San Diego County Jail (see ECF No. 2 at 4) and 9 cannot afford the $5.00 filing fee. Accordingly, the Court GRANTS Petitioner’s motion 10 to proceed in forma pauperis and allows him to prosecute the above-referenced action 11 without being required to prepay fees or costs and without being required to post security. 12 The Clerk of the Court will file the Petition for Writ of Habeas Corpus without prepayment 13 of the filing fee. 14 PETITION IS DUPLICATIVE 15 The Court may dismiss a duplicative petition as frivolous if it “merely repeats 16 pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th 17 Cir. 1995) (citations omitted). Here, Petitioner has filed two petitions with this Court which 18 contain the same claims. Upon review, the instant federal petition presents the same four 19 claims Petitioner recently raised in a separate habeas corpus proceeding in this district, 20 alleging in Claims One and Two, respectively, that trial counsel was ineffective at his 2010 21 trial and that the prosecutor withheld exculpatory evidence in violation of due process at 22 his 2010 trial, and alleging in Claims Three and Four violations relating to his ongoing 23 resentencing proceedings. (Compare ECF No. 1 at 6-26 with ECF No. 1 at 5-30 in S.D. 24 Cal. Civil Case No. 20cv1518-BAS-KSC.) The petition in that case was dismissed without 25 prejudice on November 2, 2020, as the district court found Claims One and Two subject to 26 dismissal as successive and Claims Three and Four subject to dismissal under the 27 abstention doctrine. (See ECF No. 4 in S.D. Cal. Civil Case No. 20cv1518-BAS-KSC.) 28 /// 1 CONCLUSION AND ORDER 2 The Court GRANTS Petitioner’s motion for leave to proceed in forma pauperis 3 || [ECF No. 2]. The Petition is DISMISSED without prejudice because the Petition in this 4 ||case is duplicative of the petition previously filed in S.D. Cal. Civil Case No. 20cv1518- 5 || BAS-KSC. 6 || IT ISSO ORDERED. T || Dated: December 2, 2020 8 Lau A 9 Hon. Larry Alan Burns 10 Chief United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28