The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING PETITIONER'S FIRST AMENDED PETITION (DOC. 9) ) WITH LEAVE TO FILE A SECOND AMENDED PETITION WITHIN THIRTY ) (30) DAYS OF SERVICE ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FOR WRIT OF HABEAS CORPUS DEADLINE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER
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 first amended petition (FAP), which was filed on October 31, 2012.
I. Screening the First 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). 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 pursuant to convictions sustained in September 2010 of violating Cal. Pen. Code §§ 12280(b), 12022(c), 69, 12021(a)(1), 1231(b)(1) and 667.5; Cal. Health & Safety Code § 11352(a); and Cal. Veh. Code § 2800.2. (FAP, doc. 9, 1.)
Petitioner raises the following claims in the FAP: 1) his conviction rests on evidence obtained by an unconstitutional search and seizure undertaken without probable cause in violation of Petitioner's rights under the Fourth and Sixth Amendments; 2) the prosecution failed to disclose favorable, exculpatory evidence consisting of an internal affairs investigation that indicates that evidence used to convict Petitioner had been tampered with; 3) conviction twice of the same offense of possession of a firearm violated Petitioner's protection against double jeopardy; and 4) Petitioner's conviction rests on evidence obtained from an unlawful arrest that was unsupported by probable cause. (Id. at 4-5.)
The notice pleading standard applicable in ordinary civil proceedings does not apply in habeas corpus cases. Habeas Rules 2(c), 4, and 5(b) require a more detailed statement of all grounds for relief and the facts supporting each ground; the petition is expected to state facts that point to a real possibility of constitutional error and show the relationship of the facts to the claim. Habeas Rule 4, Advisory Committee Notes, 1976 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005); O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). This is because the purpose of the rules is to assist the district court in determining whether the respondent should be ordered to show cause why the writ should not be granted and to permit the filing of an answer that satisfies the requirement that it address the allegations in the petition. Mayle v. Felix, 545 U.S. at 655. Allegations in a petition that are vague, conclusional, or palpably incredible, and that are unsupported by a statement of specific facts, are insufficient to warrant relief and are subject to summary dismissal. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
Here, Petitioner has failed to state any supporting facts in his first and fourth claims concerning the admission and use of evidence obtained from allegedly unconstitutional searches, seizures, and arrests. It is not clear what searches, seizures, or arrests are challenged, and it is unknown what evidence Petitioner alleges was improperly obtained and admitted.
Because Petitioner has failed to include any statement of supporting facts with respect to these claims, the claims must be dismissed. However, it is possible that Petitioner could state facts supporting his claims. Accordingly, the first and fourth claims will be dismissed as uncertain, but Petitioner will be given leave to file a second amended petition with respect to the claims.
III. Exhaustion of State Court Remedies
Petitioner's allegations concerning the claims he raised before the state courts are general in nature. For example, with respect to the critical information regarding what claims he raised before the California Supreme Court, Petitioner alleges only that he raised grounds of "unlawful sentence, illegal evidence, false conviction, unconstitutional conviction." (FAP at 2.) With the possible exception of the reference to illegal evidence, these descriptions do not correspond to the issues Petitioner seeks to raise before this Court.
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 ...