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Dwight Tamplin, Jr v. K. Brown

October 21, 2012

DWIGHT TAMPLIN, JR.,
PETITIONER,
v.
K. BROWN,
RESPONDENT.



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

ORDER REQUIRING PETITIONER TO SUBMIT WITHIN THIRTY (30) DAYS A ) SIGNED AND DATED DECLARATION CONCERNING THE PETITION (Doc. 1) ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER

ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE COURT REMEDIES

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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's petition, which was filed in this Court on October 4, 2012.

I. Background

Petitioner is an inmate of the Salinas Valley State Prison (SVSP) serving a sentence of forty-five years to life imposed in the Fresno County Superior Court pursuant to a conviction sustained on or about January 23, 2006, of being an ex-felon in possession of a firearm with a gang enhancement.

Petitioner challenges his conviction. In his 189-page petition, Petitioner raises the following claims: 1) trial counsel's failure to make motions constituted the ineffective assistance of counsel in violation of Petitioner's rights under the Sixth Amendment (pet., doc. 1, 5-10); 2) trial counsel's failure to investigate and call defense witnesses constituted ineffective assistance of counsel in violation of Petitioner's rights under the Sixth Amendment (id. at 11-89); 3) appellate counsel's failure to raise the denial of Petitioner's Faretta motion constituted ineffective assistance of counsel (id. at 39-130); 4) allowing a statement allegedly made by Petitioner into evidence as an element of a gang enhancement constituted a violation of Petitioner's protection against self-incrimination under the Fifth Amendment and a Miranda violation because Petitioner had not waived his rights (id. at 131-47); 5) trial counsel's failure to prepare for evidentiary issues concerning gang affiliation and to consult Petitioner concerning his defense violated Petitioner's right under the Sixth Amendment to the effective assistance of counsel (id. at 148-51); and 6) the trial court's failure to bifurcate gang enhancement allegations and the remainder of the trial constituted an abuse of discretion and a violation of Petitioner's right to due process under the Fifth Amendment (id. at 152-86).

II. 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; 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). 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).

III. Failure to Sign and Date the Petition and to Verify the Contents of the Petition to Be True under Penalty of Perjury

A review of the petition shows that Petitioner did not sign or date the petition. Further, the petition is not verified under penalty of perjury.

Local Rule 131 requires a document submitted to the Court for filing to include an original signature. In addition, Habeas Rule 2 requires a petition for writ of habeas corpus to "be signed under penalty of perjury by the petitioner."

In light of the difficulty in having Petitioner submit a new habeas corpus petition, Petitioner will be ordered to submit a separate document stating that he submitted the previously filed petition to the Court and verifying its contents to be true under penalty of perjury of the laws of the United States. Petitioner must sign the document under penalty of perjury; the document should contain an original signature. Petitioner must state the date on which he signed the document. Petitioner will be granted thirty (30) days from the date of service of this order to comply with the Court's directive.

Petitioner is forewarned that failure to comply with a Court order will result in dismissal of the ...


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