Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Darrin Bruce Mccullough v. Gary Swarthout

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


December 17, 2010

DARRIN BRUCE MCCULLOUGH PETITIONER,
v.
GARY SWARTHOUT RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, 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).

"[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Petitioner has not specified facts on which habeas relief might be granted. See Rule 2(c), Rules Governing § 2254 Cases. Although he alleges the trial court based its sentencing decision on evidence not in the record and exceeded the statutory time limitation on the receipt of information during the sentencing process, the petition does not describe what evidence the trial court wrongly considered, why it should not have considered it, or what statutory time limitation on sentencing was in effect. The petition also contains no discussion of the constitutional law that applies to the facts of this case or what relief the law requires.

The foregoing pleading deficiencies require that the petition be dismissed without prejudice. The petitioner will be allowed thirty days from the entry of this order in which to file an amended petition that alleges the specific constitutional violations and supporting facts that, if proven, would entitle him to habeas relief. Petitioner is advised that vague or conclusory claims for relief may result in summary dismissal of the amended petition. See Hendricks v. Vazquez, 908 F.2d 490, 491 (9th Cir. 1990); Rule 4, Rules Governing § 2254 Cases. Finally, petitioner is advised that claims alleging constitutional violations unrelated to his conviction in state court -- e.g., conditions of confinement or inadequate medical care while in custody -- are not appropriate grounds for habeas relief but may be appropriately alleged in a complaint filed under the Civil Rights Act, 42 U.S.C. § 1983.

Therefore, IT IS HEREBY ORDERED that:

1. Petitioner's motion to proceed in forma pauperis (docket no. 5) is granted;

2. Petitioner's application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order;

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

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

20101217

© 1992-2010 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.