The opinion of the court was delivered by: Sheila K. Oberto United Statesmagistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS THE FIRST AMENDED ) PETITION FOR FAILURE TO ALLEGE FACTS TO DEMONSTRATE STANDING AND ) FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 14)
FINDINGS AND RECOMMENDATION TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition 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 303. Pending before the Court is the first amended petition (FAP) filed on December 6, 2010.
When the petition was filed, Petitioner was an inmate of the Avenal State Prison located within the Eastern District of California. He was serving a sentence of seventeen years to life for a conviction of second degree murder sustained in the Orange County Superior Court in 1991. (Pet. 1-2.) On December 2, 1009, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Central District of California.
On December 7, 2009, an order of Magistrate Judge Robert N. Block issued from that Court dismissing the petition with leave to amend because it was "virtually unintelligible," and it was unclear whether Petitioner was challenging his 1991 sentence or a past or prospective action of the "Parole Board." (Doc. 3, 1.) The Court noted that if the petition challenged Petitioner's 1991 sentence, it appeared to be time-barred on its face; if it challenged a decision of the Parole Board, it was subject to transfer to this district because Petitioner's institution of confinement at Avenal was within this district. (Id. at 3.) The order stated that if Petitioner still desired to pursue his action in the Central District, he was ordered to file an amended petition within thirty days of service or face dismissal without prejudice for failure to prosecute. (Id. at 4-5.) On December 23, 2009, Petitioner filed a motion to appeal the order dismissing the petition with leave to amend. (Doc. 4.)
On January 14, 2010, an order of District Judge A. Howard Matz issued from the Central District in which the court construed Petitioner's motion to appeal as a timely filed objection to the order dismissing the petition with leave to amend. (Doc. 5.) Judge Matz reviewed the petition and concurred with the Magistrate Judge in the conclusion that Petitioner did not clearly articulate his claims. Judge Matz noted that in the objections, Petitioner clarified that his claims were directed to a 2008 change in California's parole laws that Petitioner contended exposed him to a sufficient risk of prolonged incarceration and more severe punishment as well as a deprivation of good-time, work-time credits without fair notice, all in violation of the prohibition against ex post facto laws. (Id. at 2-3.) The court thus transferred the petition to this district as the district of confinement. (Id. at 4.)
On November 22, 2010, the Court ordered the initial petition dismissed because Petitioner had not alleged specific facts adequate to state a claim concerning the legality or duration of his confinement, or sufficient facts to demonstrate standing or an individualized injury resulting from a specific decision or action. The Court explained that it had no information concerning any application of the challenged laws or policies to Petitioner. Further, no specific facts had been alleged that warranted a conclusion that the fact or duration of Petitioner's confinement had been implicated by the passage or application of the challenged laws. (Doc. 13, 4-6.)
Petitioner was granted leave to file a first amended petition. (Doc. 13, 7.) Petitioner filed a first amended petition (FAP) on December 6,2010.
II. Screening the First Amended Petition The Court will proceed to screen the FAP.
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 ...