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CUELLAR v. SLADE

United States District Court, N.D. California


January 21, 2004.

JOSE ANTONIO CUELLAR, Petitioner
v.
J.E. SLADE, Warden, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, the Court found that it did not state a cognizable claim for relief because it did not allege any specific violation of federal law. See 28 U.S.C. § 2254(a); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Petitioner was given leave to amend the petition to set forth cognizable claims, and the Court informed petitioner that the failure to do so would result in dismissal of this action.

Petitioner has filed an amended petition, but it does not cure the deficiencies in the original petition. A petitioner must state his claims with sufficient specificity. See Hendricks, 908 F.2d at 491-92; Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979). Conclusory allegations in a habeas petition fail to state a claim and do not suffice to shift the burden to the state to answer an order to show cause. Allard v. Nelson, 423 F.2d 1216, 1217 (9th Cir. 1970). In granting petitioner leave to amend, the Court instructed petitioner: "The Page 2 amended petition . . . must set forth claims that have been exhausted and that allege specifically how petitioner's state court conviction violated federal law. The amended petition must list claims separately and briefly in the space designated on the form and, if necessary, on an attached sheet." The amended petition makes only vague and conclusory allegations regarding his conviction, and it does not set forth any violations of federal law. As a result, petitioner has failed to comply with the order granting leave to amend the petition. Accordingly, the petition is DISMISSED for failure to state a cognizable claims for relief.

  This order terminates all pending motions and the clerk shall close the file.

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and — the jury has rendered its verdict.

  [] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the petition is DISMISSED for failure to state a cognizable claim(r) for relief.

20040121

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