Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hortense White v. Esola

October 31, 2012

HORTENSE WHITE,
PETITIONER,
v.
ESOLA, C.,
RESPONDENT.



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

ORDER DISMISSING THE SECOND AMENDED PETITION WITHOUT LEAVE TO AMEND (DOC. 13)

ORDER DISREGARDING PETITIONER'S CORRESPONDENCE (DOCS. 14, 16, 17, 19, 20)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

ORDER 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 September 10, 2012 (doc. 4). Pending before the Court is the second amended petition (SAP) for writ of habeas corpus, which was filed on October 5, 2012, pursuant to the Court's order of September 25, 2012, in which the Court dismissed the first amended petition with leave to amend within thirty days.

I. Screening the Second Amended 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).

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. Petitioner's Pleadings

The first amended petition was dismissed with leave to amend because it suffered from the procedural defects of an improper respondent and an apparent failure to exhaust state court remedies, and because the claims set forth were unintelligible and uncertain.

In the SAP, Petitioner alleges that she is an inmate of the Central California Women's Facility (CCWF), although her address as noticed upon the docket is the California Institution for Women (CIW) at Corona, California. Petitioner alleges that she is serving a five-year sentence imposed in 2009 or 2010 in the Superior Court of the State of California for the County of Madera for attempted battery on a non-confined person by an inmate. (FAP, doc. 13, 1.) It appears that Petitioner failed to exhaust state court remedies with respect to her claims. (Id. at 2-3, 5-6.) Petitioner names as Respondent one "ESOLA; C," who does not appear to be Petitioner's custodian.

More fundamentally, Petitioner's claims are unintelligible. The grounds set forth in the SAP are as follows:

Ground one: Attempt-BATTERY confined person by inmate VIRAGO was innocent and here for no reason no bodies touched.... ....

Ground two: Same offense, also had maxed out while into this Prison, And to Proceed no more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.