Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Leoncio Palma v. Katty Allison

January 3, 2011

LEONCIO PALMA,
PETITIONER,
v.
KATTY ALLISON,
RESPONDENT.



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 SERVICE OF THIS ORDER

ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FOR WRIT OF HABEAS CORPUS

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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on November 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

Petitioner is an inmate of the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, who is serving a sentence of life with the possibility of parole imposed in 1990 for a conviction of attempted murder in the San Diego Superior Court. (Pet. 1.) Petitioner challenges a decision of the "board" to deny his parole. (Pet. 4.) Petitioner claims that the evidence was insufficient to support the decision that he continues to pose an unreasonable threat, there was no individualized consideration of the appropriate factors, and the board failed to articulate a rational nexus between the factors and the conclusion that Petitioner is presently dangerous to society if released. Petitioner alleges that this violated the state and federal constitutions, and his continued incarceration is a violation of "due process." (Pet. 4, 5.)

Although Petitioner states that he has been denied parole on seven different occasions (pet. 4), he does not state the date or other identifying data in order to permit a respondent to understand precisely which decision is being challenged. Thus, Petitioner has not fully stated his claim, and it is not possible for a respondent to be able to respond intelligently to the petition.

Further, Petitioner does not identify the specific guarantee of the federal constitution that was violated or otherwise explain how the decision was in violation of federal law.

Because Petitioner fails to identify the decision being challenged and the precise federal constitutional provision or provisions violated, the petition is uncertain and must be dismissed.

B. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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