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Pineda v. Diaz

United States District Court, Ninth Circuit

June 7, 2013

JOSEPH PETER PINEDA, Petitioner,
v.
R.M. DIAZ, Respondent.

ORDER DISMISSING PETITION WITH LEAVE TO AMEND

DAVID T. BRISTOW, Magistrate Judge.

On May 15, 2013, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, along with a supporting attachment ("Pet. Att.") in the Southern District of California. On May 24, 2013, the matter was transferred to this Court and the Petition was filed in the Central District of California. Petitioner alleges that he was convicted in 2009 of murder with a firearm enhancement, robbery, carjacking, kidnapping and torture, following a jury trial, and that he was sentenced to prison for life, without the possibility of parole. (Petition at 1-2). Insofar as the Court can glean, petitioner appears to allege the following: That the trial court committed error when it permitted the jury to convict petitioner of murder; that the trial court committed error when it improperly created an unconstitutional presumption; that the trial court committed error when it failed to instruct the jury on assault as a lesser included offense; that the trial court committed error when it instructed the jury that the state did not need to prove motive; and that the trial court committed error when it sentenced petitioner for torture and murder which were part of a single court of conduct. (Pet. Att. at 1.) Petitioner's claims are not specifically set forth in the Petition. Instead, petitioner makes reference to the Pet. Att. for the basis of his federal habeas claims (see Petition at 6-9.) The Court's review of the Petition reveals that it suffers from the following deficiencies:

1. The Petition has not been submitted on either the national form appended to the Habeas Rules, or the form approved and supplied for habeas petitions by the Central District of California. See Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts (authorizing the District Court by Local Rule to require that habeas petitions be filed in a form prescribed by the Local Rule); see also Central District Local Rule 83-16.1.
2. The Petition fails to set forth the specific grounds for relief, as well as the facts supporting each ground. Moreover, the Petition is not signed by the petitioner under penalty of perjury. See Rule 2(c)(1), (2) and (5) of the Rules Governing Section 2254 Cases in the United States District Courts.

For the foregoing reasons, the Petition is dismissed with leave to amend. If petitioner desires to pursue this action, he is ORDERED to file an amended petition rectifying the deficiencies discussed above within thirty (30) days of the date of this Order. The clerk is directed to send petitioner a blank Central District habeas petition form for this purpose.

The amended petition should reflect the same case number, be clearly labeled "First Amended Petition, " and be filled out completely. In ¶ 7 of the First Amended Petition, petitioner should specify separately and concisely each federal constitutional claim that he seeks to raise herein and answer all of the questions pertaining to each such claim. (If petitioner attaches a supporting memorandum of points and authorities, the arguments therein should correspond to the claims listed in ¶ 7 of the habeas petition form and not include any additional claims.) If petitioner contends that he exhausted his state remedies in a Petition for Review to the California Supreme Court, he should list such filing in ¶ 4 of the habeas petition form and provide all of the other called for information. If petitioner contends that he exhausted his state remedies in a habeas petition to the California Supreme Court, he should list such filing in ¶ 6 of the habeas petition form and provide all of the other called for information. For each filing listed in ¶¶ 4 and 6, petitioner should be sure to specify all of the grounds raised by him in such filing, along with the case number, the date of decision, and the result.

Finally, petitioner is cautioned that his failure to timely file a First Amended Petition in compliance with this Order will result in a recommendation that the action be dismissed without prejudice for failure to prosecute.


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