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William Carney, Jr v. State Board of Prison Service et al

December 7, 2010

WILLIAM CARNEY, JR.,
PETITIONER,
v.
STATE BOARD OF PRISON SERVICE ET AL., RESPONDENTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING THE PETITION WITH LEAVE TO FILE A FIRST ) AMENDED PETITION (DOC. 1) DEADLINE: THIRTY (30) DAYS )AFTER TERMS OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FOR WRIT OF HABEAS CORPUS AND BLANK CIVIL RIGHTS COMPLAINT FORM

Petitioner is a state prisoner proceeding in forma pauperis and pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on June 22, 2010 (doc. 4). Pending before the Court is the petition filed by Petitioner, an inmate of the Avenal State Prison (ASP), on June 15, 2010.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

A. Lack of Specificity

In the petition before the Court, Petitioner states that he is serving a two-year sentence pursuant to a conviction for possession of a controlled substance sustained in the Fresno County Superior Court on March 9, 2010. Petitioner does not state whether or not he appealed the judgment of conviction (pet.1) and gives no detail concerning any exhaustion of state judicial remedies. He states in response to a query seeking the reasons for not having presented any of his listed grounds that an unspecified law was effective as of January 2005. Petitioner states his grounds as 1) "High Risk parole," 2) he has no strikes, violence, or serious offenses and thus would be eligible for parole, and 3) his first offense was a non-violent grand theft from the person, and he was eligible for half time on that count. (Pet. 4-5.) He asks for permanent injunctive relief for parolees.

Petitioner fails to identify any of his grounds for relief with specificity, and he fails to support his claims with sufficient facts. The petition is so unclear and uncertain that it would be futile to require a respondent to respond to the petition. Thus, the petition must be dismissed.

B. Proper Respondent

It appears that Petitioner has named a warden, Warden J. Katavich, as Respondent along with the State Board of Prison Terms. Because Petitioner's claims are unclear, the identity of the proper respondent is unclear. However, the Court notes that Petitioner is incarcerated at ASP, where the warden is James D. Hartley.

Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Habeas Rules provides that if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Petitioner will be given an opportunity to name a proper respondent in a first amended petition.

C. Exhaustion of State Remedies

A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 ...


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