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Hortense White v. Miss Esola

September 24, 2012

HORTENSE WHITE, PETITIONER,
v.
MISS ESOLA, ET AL.,
RESPONDENTS.



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

ORDER DEEMING THE FIRST AMENDED ) COMPLAINT TO BE A FIRST AMENDED ) PETITION (DOC. 6) ) INFORMATIONAL ORDER

. ) ORDER DISMISSING THE FIRST ) AMENDED PETITION WITH LEAVE TO ) FILE A SECOND AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A HABEAS CORPUS PETITION FORM ORDER DISREGARDING NOTICE (DOC. 8) DEADLINE FOR FILING AN AMENDED PETITION: THIRTY (30) DAYS

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 September 10, 2012 (doc. 4). Pending before the Court is the first amended petition, which was filed on September 12, 2012.

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. The petition must instead 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.

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).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

II. First Amended Petition

Petitioner has filed what purports to be a first amended complaint. (Doc. 6.) However, although much of the document is unintelligible, Petitioner mentions release and emancipation. (Id. at 2.) Further, Petitioner's initial pleading was a petition for writ of habeas corpus.

Accordingly, Petitioner's first amended complaint is DEEMED to be a first amended petition for writ of habeas corpus (FAP).

III. Jurisdiction

In the initial petition filed on August 29, 2012, Petitioner alleged that she was an inmate of the Central California Women's Facility (CCWF) in Madera, California, serving a sentence of unstated length imposed on July 6, 2010. (Pet., doc. 1, 2.) In the FAP, Petitioner alleges that she in an inmate of the California Institution for Women at Corona, California. (FAP, doc. 6, 1.) It thus appears that Petitioner has been transferred to an institution outside the territorial limits of the Eastern District of California. The Court maintains its jurisdiction, however, because "jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).

IV. Allegations of the First Amended Petition Petitioner's allegations in the FAP are unintelligible and unclear.

V. Dismissal with Leave to File an Amended Petition Here, because of the uncertainty and lack of clarity in the FAP, ...


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