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Otis v. Warden

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


January 26, 2010

LORIE OTIS, PETITIONER,
v.
WARDEN,*FN1 RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn2 Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

28 U.S.C. § 1915(a).

Petitioner sets forth two grounds for relief: 1) "incompetence of appointed counsel," which is construed as a claim of ineffective assistance of counsel; 2) (although numbered as 3) "prior strike conviction." Petition, p. 6. As to the first ground, petitioner states, rather vaguely, that her counsel "did not thoroughly inform me correctly what I was pleading to." Id. The only factual support petitioner provides is that her counsel "failed to investigate and all videotapes, fingerprints and banking information..." Petitioner's support for ground two, which is not a constitutional claim as framed, is also inadequately supported. The petition will be dismissed, but petitioner will be granted leave to amend, within 28 days, to set forth specific facts that demonstrate a violation of her constitutional rights.*fn3

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis; and

2. The petition is dismissed with leave to file an amended petition within 28 days; failure to do so will result in dismissal of this action without prejudice.


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