The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DEEMING PETITIONER'S STATUS REPORT TO BE A MOTION TO WITHDRAW THE FIRST AMENDED PETITION AND TO PROCEED ON THE CLAIMS STATED IN THE ORIGINAL PETITION (DOCS. 17, 16, 1)
ORDER DISSOLVING THE STAY OF THE PROCEEDINGS (DOC. 14) AND GRANTING PETITIONER'S MOTION TO PROCEED ON THE ORIGINAL PETITION (DOC. 17)
ORDER DISMISSING PETITIONER'S STATE LAW CLAIMS (DOC. 1) ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL
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 June 17, 2011 (doc. 5).
Pending before the Court is Petitioner's "30-DAY STATUS REPORT," filed on February 17, 2012, which the Court DEEMS to be a request to 1) withdraw the first amended petition (FAP) (doc. 16), filed on January 27, 2012, and 2) proceed on his original petition filed on June 9, 2011, which Petitioner represents contains only fully exhausted claims.
Because Petitioner had not exhausted his state court remedies as to some of the claims set forth in the original petition, Petitioner withdrew the unexhausted claims from the original petition in order to exhaust state court remedies with respect to those claims. On December 12, 2011, the Court stayed the proceedings on the exhausted claims pending Petitioner's exhaustion of state court remedies as to the remaining claims. On January 27, 2012, while state court remedies were being exhausted, Petitioner filed the FAP, which contained only the claims that appeared to be fully exhausted when the original petition was filed.
On February 17, 2012, Petitioner filed a status report stating that the California Supreme Court had denied Petitioner's petition for writ of habeas corpus on February 1, 2012. Petitioner seeks to withdraw the FAP and to proceed on the original petition.
I. Motion to Withdraw the FAP and Dissolution of the Stay Whether styled as a motion to withdraw the FAP or a motion to amend the petition to restate the claims that are now exhausted, Petitioner's request will be granted. For the purposes of additional screening of the petition by the Court and obtaining a response to the petition from the Respondent, Petitioner may proceed on the claims set forth in the original petition.
Further, although Petitioner does not expressly request that the stay of the proceedings be lifted, the relief Petitioner requests necessarily requires that the stay of the instant proceeding be dissolved. Accordingly, the Court will order that the stay of the proceedings be dissolved.
II. Dismissal of Petitioner's State Law Claims Petitioner alleges that with respect to count 6, the trial court abused its discretion in imposing a consecutive sentence instead of a concurrent term. (Pet. 8-9.) Petitioner further alleges that the sentence of an indeterminate term of 104 years to life and a determinate term of eighty (80) years to life constitutes cruel and unusual punishment under the state constitution as well as the Federal Constitution. (Id.)
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; 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 ...