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Nunez v. Marshall

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 29, 2009

ABELINO G. NUNEZ, PETITIONER,
v.
JOHN MARSHALL, 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).

Petitioner has listed three grounds for relief in his petition, but he has failed to clarify his claims or to provide sufficient supporting facts. For example, in his third claim petitioner alleges an ex post facto violation and the denial of due process and equal protection, but provides only the following supporting facts: "Defendant [sic] Right To Finding Proof On Aggravating Factors." (Pet. at 6.) In his petition, petitioner is required to identify the Constitutional provision or federal law that he contends has been violated, and to provide facts supporting each ground for relief. Rule 2, Rules Governing Section 2254 Cases. The court examines the petition to determine if it plainly appears from the petition and attached exhibits that petitioner may be entitled to relief. Rule 4, Rules Governing Section 2254 Cases. Here, the court is unable to evaluate petitioner's claims. Therefore, the petition will be dismissed and petitioner will be provided leave to file an amended petition using the form provided by the court. Petitioner must answer each question on the form petition, including the questions concerning petitioner's appeals and petitions in state court. Petitioner is also cautioned that he is required to exhaust state court remedies with respect to each of his claims. 28 U.S.C. § 2254(b)(1).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's application to proceed in forma pauperis (Doc. No. 2), is granted;

2. Petitioner's habeas petition is dismissed;

3. Petitioner is granted thirty days from the date of service of this order to file an amended petition that complies with the requirements of the Federal Rules of Civil Procedure; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;" petitioner must use the form petition provided by the court; petitioner's failure to file an amended petition in accordance with this order will result in the dismissal of this action; and

4. The Clerk of the Court is directed to provide petitioner with the court's form habeas petition for a state prisoner.

20090429

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