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Liber R. andrade v. Cal. Board of Prison Service

January 20, 2011

LIBER R. ANDRADE,
PETITIONER,
v.
CAL. BOARD OF PRISON SERVICE
RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DIRECTING PETITIONER TO FILE A SUPPLEMENT TO THE PETITION CONTAINING A VERIFICATION AND SIGNATURE NO LATER THAN THIRTY ) (30) DAYS AFTER THE DATE OF HEARINGS, OF THIS ORDER (Doc. 1)

SERVICE OF THIS ORDER (Doc. 1) ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE REMEDIES (Doc. 1)

ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF

Petitioner is a state prisoner proceeding 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 July 1, 2010 (doc. 3).

Pending before the Court is the petition, which was filed on June 22, 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).

II. Formal Defects in the Petition

The portion of the petition containing arguments (pet. 7-16) is respectfully submitted and bears the signature of Petitioner. (Pet. 16.) However, the verification portion of the petition form is not signed. (Pet. 6.) Thus, the petition itself is not signed or declared to be true under penalty of perjury.

Rule 2(c)(5) of the Rules Governing Section 2254 Cases (Habeas Rules) requires a petition for writ of habeas corpus to "be signed under penalty of perjury by the petitioner...."

III. Order to Submit a Supplement to the Petition In light of the difficulty in having Petitioner submit an entire new petition because the petition was not signed under penalty of perjury, Petitioner is DIRECTED to submit to this Court no later than thirty (30) days after the date of service of this order a document entitled "Supplement to the Petition" that is labeled with the case number of the present proceeding and which is to consist of a declaration in which Petitioner declares under penalty of perjury under the laws of the United States of America that the matters alleged in the petition filed in this proceeding on June 22, 2010, are true and correct. The declaration must indicate the date it was executed, and it must be signed by Petitioner. See 28 U.S.C. § 1746.

IV. Petitioner's Failure to Name a Proper Respondent In this case, Petitioner is an inmate of the California Substance Abuse and Treatment Facility at Corcoran (CSATF). Petitioner challenges the state parole authorities' decision on or about May 23, 2007, to deny parole to Petitioner. Petitioner named as Respondent the "Cal. Board of Prison Hearings." (Pet. 1.)

A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. Habeas Rule 2(a); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner and thus can produce the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d ...


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