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Capps v. McDonald

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


August 4, 2010

ANTHONY CAPPS, PETITIONER,
v.
MIKE MCDONALD, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

Petitioner has failed to specify the grounds for relief in his petition. See Rule 2(c), Rules Governing § 2254 Cases. Rule 2(c) specifically provides:

(c) Form. The petition must:

(1) specify all the grounds for relief available to the petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

Id. It is not appropriate to ask the court to "review the totality of the record and to render an opinion" as to any "possible violations in the state appeal process" or in sentencing. (Pet. at 4.) Petitioner must identify specific constitutional violations he is alleging and set forth facts supporting his position. Accordingly, the petition will be dismissed and petitioner will be granted leave to file an amended petition. Petitioner is cautioned that failure to timely file an amended petition pursuant to this order will result in a recommendation that this action be dismissed.

Therefore, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis (Dkt. Nos. 2 & 4);

2. Petitioner's application for writ of habeas corpus is dismissed with leave to amend;

3. Within thirty days from the date of this order, petitioner shall complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and

b. An original and one copy of the Amended Petition.

4. Any amended petition must bear the case number assigned to this action and the title "Amended Petition";

5. Petitioner is cautioned that failure to file an amended petition pursuant to this order may result in the dismissal of this action; and

6. The Clerk of the Court is directed to send petitioner the court's form for application for writ of habeas corpus.

NOTICE OF AMENDMENT

Petitioner hereby submits the following document in compliance with the court's order filed

Amended Petition

DATED:

Petitioner

20100804

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