The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge
ORDER DISMISSING PETITION WITH LEAVE TO AMEND
On or about August 26, 2009, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein in the Northern District of California. On April 27, 2010, the matter was transferred to this Court and the Petition was filed in the Central District of California on April 30, 2010. Attached to the Petition are various documents, letters, newspaper articles and a "statement of the case" (collectively "Pet. Att."). Petitioner alleges that he was convicted in 1987 of first degree murder with a gun use enhancement, pursuant to California Penal Code §§ 187 and 12022.5, following a jury trial, and that he was sentenced to prison for 25 years-to-life, plus two years. (Petition at 3). Insofar as the Court can glean, petitioner appears to allege that the trial court committed error through the admission of evidence relating to the testing of bullet fragments apparently connecting petitioner with the murder. (See, e.g., Pet. Att. at 4.) Petitioner's claims are not specifically set forth in the Petition. Instead, petitioner makes reference to the Pet. Att. for the basis of his federal habeas claims (see Petition at 6-7.) The Court's review of the Petition reveals that it suffers from the following deficiencies:
1. The Petition has not been submitted on either the national form appended to the Habeas Rules, or the form approved and supplied for habeas petitions by the Central District of California. See Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts (authorizing the District Court by Local Rule to require that habeas petitions be filed in a form prescribed by the Local Rule); see also Central District Local Rule 83-16.1.
2. Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner has exhausted the remedies available in the courts of the State.*fn1 Exhaustion requires that the prisoner's contentions be fairly presented to the state courts, and be disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed. 2d 438 (1971). As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed. 2d 179 (1982). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, the Petition is silent as to what specific claims petitioner is raising, and whether such claims have been exhausted before the California Supreme Court. The Court is unable to determine from the face of the Petition whether petitioner has met his burden of demonstrating that he has exhausted his state remedies with respect to each of the grounds for relief that he is purporting to allege herein.
3. The Petition fails to set forth the specific grounds for relief, as well as the facts supporting each ground. Moreover, the Petition is not signed by the petitioner under penalty of perjury. See Rule 2(c)(1),(2) and (5) of the Rules Governing Section 2254 Cases in the United States District Courts.
For the foregoing reasons, the Petition is dismissed with leave to amend. If petitioner desires to pursue this action, he is ORDERED to file an amended petition rectifying the deficiencies discussed above within thirty (30) days of the date of this Order. The clerk is directed to send petitioner a blank Central District habeas petition form for this purpose.
The amended petition should reflect the same case number, be clearly labeled "First Amended Petition," and be filled out completely. In ¶ 7 of the First Amended Petition, petitioner should specify separately and concisely each federal constitutional claim that he seeks to raise herein and answer all of the questions pertaining to each such claim. (If petitioner attaches a supporting memorandum of points and authorities, the arguments therein should correspond to the claims listed in ¶ 7 of the habeas petition form and not include any additional claims.) If petitioner contends that he exhausted his state remedies in a Petition for Review to the California Supreme Court, he should list such filing in ¶ 4 of the habeas petition form and provide all of the other called for information. If petitioner contends that he exhausted his state remedies in a habeas petition to the California Supreme Court, he should list such filing in ¶ 6 of the habeas petition form and provide all of the other called for information. For each filing listed in ¶¶ 4 and 6, petitioner should be sure to specify all of the grounds raised by him in such filing, along with the case number, the date of decision, and the result.
As the Petition challenges petitioner's underlying conviction from 1987, there is a strong likelihood that it may be time-barred by the one-year statute of limitations period for habeas petitions prescribed by the Antiterrorism and Effective Death Penalty Act of 1996. However, until petitioner cures the deficiencies set forth above, the Court is unable to adequately analyze the timeliness of the Petition.
Finally, petitioner is cautioned that his failure to timely file a First Amended Petition in compliance with this Order will result in a recommendation that the action be dismissed without prejudice for failure to prosecute.
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT
It is your responsibility to notify the Clerk of Court in writing of any change of address. If represented by an attorney, provide his name, address, telephone and facsimile numbers, and e-mail address.
To be supplied by the Clerk of the United States District Court
Include name under which you were convicted) Petitioner,
AMENDED PETITION FOR WRIT OF HABEAS CORPUS v. BY A PERSON IN STATE CUSTODY
NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED PERSON HAVING CUSTODY OF PETITIONER
PLACE/COUNTY OF CONVICTION PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT (List by case number)
INSTRUCTIONS - PLEASE READ CAREFULLY
To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief from the conviction and/or the sentence. This form is your petition for relief.
In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment entered by a different California state court, you must file a separate petition.
Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you must facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California United States Courthouse ATTN: Intake/Docket Section 312 North Spring Street Los Angeles, California 90012
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
G a conviction and/or sentence.
b. Place of conviction and sentence
Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts):
b. Penal or other code section or sections:
f. Length of sentence on each count:
h. Kind of trial (check one):
G Judge only Did you appeal to the California Court of Appeal from the judgment of conviction? G Yes G No If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
b. Grounds raised (list each):
If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal decision? G Yes G No If so give the following information (and attach copies of the Petition ...