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James George Stamos, Jr. v. Warden -- Salinas Valley

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


November 29, 2011

JAMES GEORGE STAMOS, JR. PETITIONER,
v.
WARDEN -- SALINAS VALLEY STATE PRISON RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis.

Examination of the trust account documents and petitioner's affidavit shows that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).

Petitioner alleges that his right to appeal his conviction and his right to counsel on appeal were denied. However, petitioner does not adequately state any factual support for those allegations. "[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); see also Rule 2(c), Rules Governing § 2254 Cases. The court cannot order the petition to be served unless it contains a statement of facts that tells the respondent and the court what actions by a state court deprived petitioner of his right to an appeal or his right to appellate counsel. Therefore, the court will dismiss the original petition and allow petitioner an opportunity to submit an amended petition that sufficiently states the factual bases of his claims.

If petitioner chooses to file an amended petition, the court will examine it according to the same screening standards applied to his original petition. In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended petition complete. Local Rule 220 requires that an amended pleading be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint or petition supersedes the original. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once petitioner files an amended petition, the original no longer serves any function in the case. Therefore, in an amended petition, as in an original petition, each habeas claim and the factual bases underlying it must be sufficiently and completely alleged.

Finally, petitioner is admonished that failure to submit an amended petition within the time allowed by this order will result in a recommendation that the petition be dismissed pursuant to Fed. R. Civ. P. 41(b).

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis (Docket No. 20) is granted.

2. The petition for writ of habeas corpus (Docket No.1) is dismissed, with leave to amend. Petitioner has thirty days from the entry of this order in which to file an amended petition. If he submits an amended petition, he should label it "First Amended Petition" on the first page.

20111129

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