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Robert Anthony Soares v. People of the State of California

June 6, 2012

ROBERT ANTHONY SOARES,
PETITIONER,
v.
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 10) ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (DOC. 1) ORDER DISMISSING AS MOOT PETITIONER'S REQUEST TO PRESERVE ISSUES (DOC. 13)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE

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 December 7, 2011 (doc. 7). Pending before the Court is the Court's order, issued on January 3, 2012, to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies.

I. Discharge of the Order to Show Cause Petitioner timely responded to the order to show cause on March 14, 2012. Accordingly, the order to show cause will be discharged.

II. Dismissal of 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 at 491.

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).

III. Background

In the petition, Petitioner complains of his counsel's failure to call witnesses to testify concerning an arrest, which appears to have formed the basis of either a criminal conviction, a violation of probation, or both in May 2011 in the Superior Court of the State of California for the County of Merced. Petitioner alleges that he was sentenced to a prison term of five years and eight months on August 16, 2011, for petty theft and possession of methamphetamine. (Pet. 1, 2, 4, 7.) It is unclear whether Petitioner complains of a criminal conviction, a violation of probation, or both.

Petitioner alleges that he appealed the judgment of conviction. (Pet. 1.) He further alleges that he filed a petition for writ of habeas corpus in the Merced Superior Court, which was denied in August 2011. (Id. at 2.) Petitioner also responds to a query in the form petition that in addition to the direct appeal of the judgment of conviction or sentence, he did not file any further petitions or applications. (Id.) Other than the habeas petition filed in the Merced Superior Court, Petitioner does not specifically describe the proceedings in the state courts in which he exhausted his claims.

Because upon review of the petition it appeared that Petitioner had not presented his claims to the California Supreme Court, the Court issued the order to show cause.

In the response to the order to show cause that Petitioner filed on March 14, 2012, Petitioner stated the following, which was not sworn to be true under penalty of perjury:

MOTION WITH LEAVE TO AMEND PENDING ADJUDICATION OF STATE APPEALS PENDING FAILURE OF DEFENSE TO PRESENT ALABI (sic) WITNESS GROUNDS FOR REVERSAL OF CONViCTION. MOTION TO PRESERVE ISSUES FOR FEDERAL APPELLATE PROCESSES PENDING. EXCESSIVE FORCE BY USE OF TASER GROUNDS FOR CIVIL DAMAGES. (Doc. 13, 1.)

Review of Petitioner's response shows that Petitioner did not provide any information concerning exhaustion of state court remedies by presentation of his claims to the California Supreme Court. Petitioner appears to be asking this Court to preserve his issues, but he does not provide any information to support a conclusion that he has ...


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