The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
) ORDER DENYING PETITIONER'S ) REQUEST FOR BAIL OR A BAIL ) HEARING (DOC. 1) AND PETITIONER'S ) REQUEST FOR DISCOVERY (DOC. 7) ORDER DISMISSING STATE LAW CLAIMS ) WITHOUT LEAVE TO AMEND )) ORDER DISMISSING THE REMAINDER OF ) THE PETITION WITH LEAVE TO FILE A FIRST AMENDED PETITION (DOC. 1)
DEADLINE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FOR WRIT OF HABEAS CORPUS
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 October 1, 2012 (doc. 5). Pending before the Court is the petition, which was filed on September 20, 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 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). However, 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).
Here, Petitioner alleges that he is an inmate of the Corcoran State Prison (CSP) serving a sentence of thirteen years and eight months imposed in the Fresno County Superior Court in case number F10901778 pursuant to convictions sustained in September 2010 of possession of an assault rifle, transportation of a controlled substance, and possession of a firearm in violation of Cal. Pen. Code §§ 12280 and 12022(c) and Cal. Health & Safety Code § 11352. (Pet., doc. 1, 2.)
Some of Petitioner's allegations are unclear or unintelligible and may be an attempt to state additional claims. However, it appears that Petitioner alleges the following claims in the petition: 1) the trial court's choice of count two as the principal term constituted an abuse of discretion, an illegal enhancement in violation of the determinate sentencing guidelines and Cal. Pen. Code § 1170.d(2), a disparate sentence, and a violation of Petitioner's right to due process and the Sixth and Fourteenth Amendments (id. at 3); 2) sentencing on counts 5, 6, and 7, involving possession of a dangerous weapon, ownership of ammunition, and possession of a firearm by a felon, violated double jeopardy in light of Petitioner's "conviction of a firearm" (id. at 3, 6); 3) because Petitioner's charges at his parole revocation hearing were the same as his criminal charges, his "Valdivia due process right" was violated (id. at 4); 4) the judge who sentenced Petitioner and presided over other, unspecified proceedings in the trial court was biased and prejudiced because the judge presided over disputed prior convictions and a previous habeas corpus action challenging convictions that were ultimately reversed or subject to executive clemency, and as a result, Petitioner's right to a fair trial and requirements for disqualification of judges were violated (id. at 7-8); 5) the trial court denied a suppression motion concerning exculpatory evidence, consisting of an internal affairs report concerning police misconduct and tampering with evidence to enhance the charges, without good cause in violation of Cal. Pen. Code §§ 1382(a)(2) and 1387, and specified state statutes (id. at 8, 13); 6) amendment of the information to charge a violation of § 12280(b) was unlawful and a violation of Petitioner's right to a fair trial (id. at 9); 7) inaccurate, false sentencing documents (psychological reports, a probation report, and a letter) and cumulative errors resulted in a fundamentally unfair sentencing process and denied Petitioner due process (id. at 12);
8) Petitioner's motion to dismiss for failure to bring his felony charges to trial in a timely manner in violation of Cal. Pen. Code § 1382 was wrongfully denied (id. at 14-15); 9) Judge Sanderson was unfairly biased against Petitioner, which resulted in denial of Petitioner's motion to dismiss the information for delay in bringing the case to trial (id. at 15); 10) "validity of felony complaint unconstitutional by procedural violations of statutory error of filing information" based on the absence of an arrest record for violations of §§ 11352 and 12022, and not having been brought to trial within sixty days, all in violation of Rhinehart v. Municipal Court, 35 Cal.3d 772 (1984), the Federal Rules of Civil Procedure, "Rule 14 instructional errors," and Rose v. Clark (no citation provided) (id. at 16); 11) amendment of charges concerning counts 5, 6, and 7 was an abuse of discretion and violated Petitioner's arraignment rights based on Cal. Rules of Court, Rule 30(b), Code of Civil Procedure § 639, and other authorities not fully identified (id. at 17); and 12) counts 5, 6, and 7 are excessive and violated Petitioner's rights under the Eighth Amendment because a person cannot be convicted of possession of a firearm and being a convicted felon with a firearm (id. at 18).
Petitioner prays for reversal of his convictions, a bail hearing, and release. (Id. at 18.)
II. Failure to Name a Proper Respondent
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A petition for writ of habeas corpus brought on behalf of one in custody under a state court judgment shall allege the name of the person who has custody over the applicant as respondent.
28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).
Here, Petitioner names the trial court and the trial judge. Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction.
However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to name a proper respondent, such as the warden of his facility. See, In re Morris, 363 F.3d 891, 893-94 (9th Cir. 2004). Failure to amend the petition and name a proper respondent will result in dismissal of the petition for lack of jurisdiction or failure to name a respondent with the power to produce the petitioner.
III. Exhaustion of State Court Remedies
Petitioner alleges that he appealed from the judgment of conviction, raising "Due process 14th Amend, sua sponte, 5th Amend," and he sought review in the California Supreme Court, which issued a decision in April 2012. (Id. at 31.) However, in response to a query concerning an explanation why his petition makes a claim that was not made on appeal, Petitioner states, "Discovery of issue on claim not known to petitioner at time of appeal." (Id.) Petitioner does not identify which claim or claims were not raised or presented to the state courts. He further indicates that he filed a habeas corpus petition in the Fresno County Superior Court concerning an ...