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Dunlap v. Board of Prison Hearings

June 22, 2009

JERMAINE JOSEPH DUNLAP, PETITIONER,
v.
BOARD OF PRISON HEARINGS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND AMENDED PETITION

(Doc. 15)

ORDER DIRECTING OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 19, 2008, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1). On April 2, 2009, the Court ordered Petitioner to file an amended petition because the original petition was completely unintelligible and therefore failed to state a claim upon which federal habeas relief could be granted. (Doc. 10). On April 20, 2009, Petitioner filed his first amended petition. The first amended petition contained virtually identical allegations to the original, incomprehensible petition. Accordingly, on May 15, 2009, the Court again ordered Petitioner to amend his petition, this time by filing a second amended petition. (Doc. 14). On May 21, 2009, Petitioner complied, filing a second amended petition that appears to be as incomprehensible as the first two petitions.

A. Preliminary Screening of the Petition

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). Otherwise, the Court will order Respondent to respond to the petition. Rule 5 of the Rules Governing § 2254 Cases. A preliminary review of the Petition reveals that Petitioner may not have exhausted his state court remedies, that Petitioner's claims are incomprehensible, that he has named an improper Respondent, and that Petitioner has not provided sufficient information to permit an assessment regarding whether he filed his Petition beyond the applicable one-year statute of limitations period.

B. Failure to State a Comprehensible and Cognizable Habeas Claim

A federal court may only grant a petition for writ of habeas corpus if a petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254 (a). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1),(2).

A petition for writ of habeas corpus must therefore specify the grounds for relief. Rule 2(c) of the Rules Governing Section 2254 Cases. The petition must also allege the facts surrounding the petitioner's incarceration. 28 U.S.C. § 2242. The petitioner must make specific factual allegations that would entitle him to habeas corpus relief if they are true. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); United States v. Poopola, 881 F.2d 811, 812 (9th Cir. 1989).

At a minimum, the Court must be able to discern (1) the constitutional nature of the habeas claim; (2) the pertinent facts supporting the claim; and (3) the relief requested. In the second amended petition, as with the original petition and the first amended petition, the Court can discern none of these essential components of a cognizable habeas petition because Petitioner's "claim" or "claims" are completely incomprehensible.

For example, Ground One states as follows:

Ex parte modification of injunction and temporary injunction: fugitive division. This cause came on to be heard upon petition's application for an order seeking clarification and modification of injunction and temporary injunction; and the court of appeals having or had before it the petition for motion modifying injunction and ...


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