The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE ) TO FILE A FIRST AMENDED PETITION
NO LATER THAN THIRTY (30) DAYS ) AFTER THE DATE OF SERVICE OF THIS ORDER (DOC. 1)
ORDER DISMISSING AS MOOT PETITIONER'S MOTIONS FOR STAY AND ABEYANCE AND HIS REQUEST TO RESUME THE PROCEEDINGS (DOCS. 3, 9, 12)
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 July 26, 2012 (doc. 7). Pending before the Court is the petition; Petitioner's motions for a stay, which were filed on July 11, 2012, and August 2, 2012; and Petitioner's motion to resume the proceedings, filed on October 9, 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). 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).
Petitioner alleges that he is an inmate of the High Desert State Prison (HDSP) at Susanville, California, serving a sentence of twenty-five years to life for convictions of second degree murder and assault causing serious harm sustained in the Superior Court of the State of California for the County of Kern. (Pet., doc. 1, 1.) Petitioner alleges the following claims in the petition: 1) the trial court's denial of Petitioner's Batson/Wheeler motion violated Petitioner's rights under the Sixth Amendment; 2) Petitioner's due process rights were violated by the trial court's denial of a motion to suppress evidence which was not accompanied by clear and appropriate factual findings on the record; 3) trial counsel's failure to move to dismiss the prosecution as a constitutionally barred re-prosecution after a mistrial constituted ineffective assistance of counsel; 4) trial counsel's failure to submit exculpatory evidence that negated guilt (and prompted the mistrial) constituted ineffective assistance of counsel; 5) trial counsel's failure to investigate prosecution witnesses before they testified constituted ineffective assistance of counsel; 6) trial counsel's failure to present witnesses whose testimony could show perjury on the part of a witness for the prosecution who had been at Petitioner's mother's home constituted ineffective assistance of counsel; and 7) trial counsel's failure to file a motion to dismiss the criminal charges or to seek a mistrial on the basis of the absence of evidence to support the charges constituted ineffective assistance of counsel; and 8) appellate counsel's failure to present issues of trial counsel's ineffectiveness constituted ineffective assistance of counsel. (Id. at 4-8.)
The Court notes that pursuant to the Court's earlier order, on August 9, 2012, Petitioner submitted a signed declaration to cure the absence of a signature and verification in the original petition.
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). In a habeas proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless the interpretation is deemed untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
As to some of Petitioner's claims, the legal basis is unclear. This Court will construe a petition from a pro se petitioner liberally and with deference. Maleng v. Cook, 490 U.S. 488, 493 (1989); Belgarde v. State of Montana, 123 F.3d 1210, 1213 (9th Cir. 1997). However, generalized references to concepts such as due process, double jeopardy, fundamentally fair trial, bias, prejudice, etc., as well as similarly generalized references to a constitution or unconstitutionality are insufficient to set forth a federal legal basis for a claim because such terms are also descriptive of state law grounds.
Here, it is unclear whether Petitioner's second claim, which refers to "due process rights" (doc. 1 at 4), is based on the state or federal constitution. It is also uncertain whether Petitioner's third through eighth claims, which refer to the ineffective assistance of trial and appellate counsel, are intended to refer to the right to counsel guaranteed by the Federal Constitution as distinct from the state constitution.
As the claims now stand, it is not clear that Petitioner is invoking federal law, as distinct from state law, as the legal basis for the claims. However, it is possible that Petitioner could allege federal claims ...