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Smith v. Kernan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


July 5, 2005

DARREL LEE SMITH, PETITIONER,
v.
SCOTT KERNAN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER OF DISMISSAL WITH LEAVE TO AMEND

Darrel Lee Smith, an inmate at the California State Prison - Sacramento, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. His in forma pauperis application also is before the court for consideration.

Smith's petition alleges that he was convicted on a nolo contendere plea in the Contra Costa County Superior Court of false impersonation. The petition also alleges that he was sentenced to one year in prison earlier this year. He may have appealed, but the petition is confusing on this point.

This court may entertain a petition for 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court 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." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

The petition describes the ground for relief as "for the court to reduce felony to misdemeanor" and then makes several other statements -- the meaning of which the court cannot understand. Petition, p. 5. The court is unable to understand enough of the petition for writ of habeas corpus to order an answer from respondent, who doubtless would be equally unable to understand the claim(s) therein. Smith will be given leave to amend to state each of his claims more clearly. For each claim, Smith should explain what particular federal constitutional right was violated and explain what happened (or failed to happen) in the proceedings during which he pled nolo contendere or during the appeal that caused the violation of his federal constitutional rights. Smith may wish to attach to his amended petition a copy of his petition for review to the California Supreme Court; sometimes it is easier for the court to understand the federal claims by reading the brief from state court.

For the foregoing reasons, the petition is dismissed with leave to amend. Smith must file an amended petition no later than August 12, 2005. This action will be dismissed if Smith does not file an amended petition by the deadline.

Petitioner's in forma pauperis application is GRANTED. (Docket # 3.)

IT IS SO ORDERED.

20050705

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