United States District Court, N.D. California
May 10, 2004.
SON HIEU NGUYEN, Petitioner,
D.L. RUNNELS, Warden, Respondent
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER OF DISMISSAL WITH
LEAVE TO AMEND
Petitioner, a state prisoner currently incarcerated at High Desert
State Prison in Susanville, California, has filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. He also seeks appointment
of counsel and leave to proceed in forma pauperis ("IFP') under
28 U.S.C. § 1915.
Petitioner was convicted by a jury in the Superior Court of the State
of California in and for the County of Santa Clara of two counts of
assault with a deadly weapon and certain other related crimes. On or
about August 16, 2001, he was sentenced to 8 years and 8 months in state
Petitioner unsuccessfully appealed his conviction to the California
Court of Appeal and the Supreme Court of California. He also sought
collateral relief from the state courts. The Supreme Court of California
denied his last petition for state habeas relief on November 12, 2003. DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in
behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a).
It shall "award the writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled
thereto." Id. § 2243. It also may dismiss with leave to amend if the
petitioner does not state his claims with sufficient specificity. See
Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990); Jarvis v.
Nelson. 440 F.2d 13, 14 (9th Cir. 1971).
B. Legal Claims
Petitioner alleges in his petition that his "claims and supporting
facts are set out in the attached Petition for Review & Petition for
Writ of Habeas Corpus." Pet. at 6. Unfortunately, there is no such
attachment to the petition or any other indication in the petition as to
the specifics of petitioner's claims. The petition must be dismissed with
leave to amend so petitioner can state his claims with specificity.
See id .
C. Requests for counsel and leave to proceed IFP
Petitioner's request for appointment of counsel (doc # 3) is DENIED
without prejudice to renewing after he sets out his claims. Good cause
shown, however, his request to proceed IFP (doc # 2) is GRANTED.
For the foregoing reasons, the petition is dismissed with leave to
amend, as indicated above, within 30 days of this order. The amended
pleading must include the caption and civil case number used in this order and
the words AMENDMENT TO PETITION on the first page. Failure to file a
proper amendment to the petition within the designated time will result
in the dismissal of this action.
© 1992-2004 VersusLaw Inc.