Opinion
No. 2:16-cv-2272 CKD P
10-28-2016
KENNETH O. OWENS, Petitioner, v. JOE A. LIZARRAGA, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a). The court must now determine if the action is frivolous or malicious.
In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court's determination of whether a complaint or claim is frivolous is based on "'an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.'" Franklin, 745 F.2d at 1227 (citations omitted). ////
The instant petition was filed with the court on September 26, 2016. Court records reveal that on June 18, 2015, petitioner filed a petition challenging the same 2011 murder conviction as in this action. Owens v. People of the State of California, No. 2:15-cv-1286 KJM GGH (E.D. Cal.). Petitioner's motion for reconsideration of the judgment in that case, concerning whether the action should be stayed while petitioner exhausts state remedies, is still pending. (Id., ECF No. 14.) Due to the duplicative nature of the present action, the court finds it frivolous and, therefore, will dismiss the petition. 28 U.S.C. § 1915(d). Petitioner has consented to Magistrate Judge jurisdiction to conduct all proceedings in this action. (ECF No. 5.)
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's request for leave to proceed in forma pauperis (ECF No. 6) is granted;
2. The petition is dismissed without prejudice; and
3. The Clerk of Court shall close this case. Dated: October 28, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 2 / owen2272.123