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Ramos v. Adams

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


November 2, 2009

OSCAR RAMOS, PETITIONER,
v.
WARDEN ADAMS, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 6, 2009, the court ordered petitioner to file an amended petition so that he could name a proper respondent. On October 26, 2009, petitioner filed his amended petition; however, petitioner did not complete each question in the form petition and the court is unable to determine if petitioner has exhausted state court remedies for his claim(s). The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). Therefore, the court will order petitioner to file a second amended petition and to answer each question posed in the form petition.

In his amended petition, petitioner alleges that he was convicted of second degree robbery and possession of a firearm by a court located in Shasta County. However, in support of his first claim, petitioner alleges that he was convicted in Sacramento County. In his amended petition petitioner should clearly state the nature of the conviction that he is seeking to challenge as well as the court in which that judgment of conviction was entered against him.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's amended petition, filed on October 26, 2009, is dismissed;

2. Petitioner is granted thirty days from the date of service of this order to file a second amended petition that complies with the requirements of the Federal Rules of Civil Procedure; the second amended petition must bear the docket number assigned this case and must be labeled "Second Amended Petition;" petitioner must complete each question in the form petition; petitioner's failure to file a second amended petition in accordance with this order will result in the dismissal of this action; and

3. The Clerk of the Court is directed to provide petitioner with the court's form petition for a writ of habeas corpus by a state prisoner, and to correct the court's docket to replace Warden Adams as the respondent in this action.

20091102

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