IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 27, 2012
JUSTIN MICHAEL LANGSTON, PETITIONER,
RON BARNES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, filed in the Ninth Circuit an application for leave to file a second or successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, the Ninth Circuit transferred petitioner's application to this district court because petitioner stated that he had "not previously filed a petition for habeas corpus relief in the district court," noting that "[a]n application for a writ of habeas corpus must be made to the district court. See Fed. R. App. P. 22(a); see also 28 U.S.C. § 2241(b)." Order at docket # 1-1, pp. 1-2.
Petitioner appears to be challenging a 2008 Shasta County Superior Court conviction for lewd and lascivious acts with a child under 14 (Cal. Pen. Code § 288a) and furnishing marijuana to a minor (Cal. Health & Safety Code § 11361) on the ground that he received ineffective assistance of counsel. Docket # 1, pp. 1, 5. However, petitioner's application is not presented in a lucid manner, at least in part because he has not used the appropriate form for filing a habeas corpus petition in this district. Filing his habeas application on the correct form will eliminate any confusion as to which court the petition is directed and allow petitioner the opportunity to present the basis for his challenge in the district court in an organized fashion as well as provide clarity for the court on such questions as the precise length of the sentence he received as a result of the subject conviction. The transferred application will be dismissed with leave for petitioner to file his petition in this district court on the appropriate form.
In addition, petitioner has also not filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The petition is dismissed with leave to file a petition on the appropriate form within thirty days from the date of service of this order;
2. Petitioner shall also submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;
3. Petitioner's failure to comply with any portion of this order will result in dismissal or a recommendation of dismissal of this action by the undersigned; and
4. The Clerk of the Court is directed to send petitioner both a copy of the appropriate form for filing a habeas application under 28 U.S.C. § 2254 and the in forma pauperis form for prisoners used by this district.
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