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A.D. Webb v. Randy Grounds

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 17, 2011

A.D. WEBB,
PETITIONER,
v.
RANDY GROUNDS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER REQUIRING PETITIONER TO SUBMIT SIGNED DECLARATION NO LATER THAN TWENTY (20) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER

Petitioner is a state prisoner proceeding pro se and in forma pauperis 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 March 18, 2011 (doc. 5). Pending before the Court is the first amended petition (FAP), which was filed on August 9, 2011.

Upon a close examination of the first amended petition submitted to the Court, the Court has discovered that the petition does not contain a signature. Local Rule 131 requires a document submitted to the Court for filing to include an original signature. In addition, Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) requires a petition for writ of habeas corpus to be signed.

The absence of a signature results in the petition not being verified, or stated to be true by the maker under penalty of perjury. However, a verification is required by 28 U.S.C. § 2242, which provides in pertinent part:

Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.

Likewise, Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) expressly requires that the petition "be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242." Habeas Rule 2(c)(5).

Title 28 U.S.C. § 1746 requires that a declaration be subscribed as true under penalty of perjury, and be executed substantially in the statutory form, which in turn requires a declaration "under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746.

If a petition is insufficient, the rules direct the Clerk to file the petition, and the Court may then require the petitioner to submit a corrected petition that conforms to Rule 2(c). Habeas Rule 3(b); Habeas Rule 2, Advisory Committee Comment, 2004 Amendments.

In light of the difficulty in having Petitioner submit a new habeas corpus petition, Petitioner is ORDERED to submit a document in which he 1) states that he submitted the instant first amended petition to the Court and 2) verifies the truth of the matters alleged in the first amended petition pursuant to 28 U.S.C. § 1746. Further, Petitioner is ORDERED to sign the document under penalty of perjury. The document should contain an original signature. Petitioner is GRANTED twenty (20) days from the date of service of this order to comply with the Court's directive.

Petitioner is forewarned that failure to comply with a Court order will result in dismissal of the petition pursuant to Local Rule 110.

IT IS SO ORDERED.

20111117

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