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Marroquin v. Smelosky

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 11, 2009

ERIC MARROQUIN, PETITIONER,
v.
M.A. SMELOSKY, RESPONDENT.

The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

ORDER GRANTING MOTION TO DISMISS AND ALLOWING THIRTY DAYS LEAVE TO AMEND

On January 12, 2009, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254 with this Court. On February 25, 2009 Respondent filed a Motion to Dismiss ("Motion") on the grounds that Petition was unverified. For the reasons discussed below, the Motion is granted and the Court provides thirty days leave to amend.*fn1

The Petition must be dismissed because it is unsigned. Pursuant to 28 U.S.C. § 2242, an application for a writ of habeas corpus "shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf." In addition, Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Court requires that the petition be signed under penalty of perjury by the petitioner.

The Court "may refuse to file, or may dismiss, an unsigned and unverified petition." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (citations omitted). Accordingly, the Petition is dismissed with leave to amend. Should Petitioner wish to file a First Amended Petition, he is advised to sign and verify the amended petition. Cf. Id. at 492 (Ninth Circuit reversed summary dismissal of petition that was not signed and verified for other reasons and then added, "On remand, Hendricks should sign and verify his habeas petition.").

If Petitioner wishes to pursue this action, he must file a First Amended Petition within thirty (30) days from the date of this Order, using the form approved by the Central District. A copy of the standard form for habeas petitions is attached for Petitioner's use. The First Amended Petition shall be complete in itself and shall bear both the designation "First Amended Petition" and the case number assigned to this action. It shall not refer in any manner to the original Petition. A copy of the original Petition will be returned to Petitioner should he wish to refer to it.

Petitioner is explicitly cautioned that failure to timely file a First Amended Petition will result in a recommendation that this action be dismissed with prejudice for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).

If Petitioner does not wish to pursue this action further and instead wishes to voluntarily dismiss the Petition himself, he may do so by simply submitting a Notice of Dismissal pursuant to Federal Rule of Civil Procedure 41(a). A copy of that form is also attached should Petitioner desire to use it.

IT IS SO ORDERED.


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