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Morales v. Foulk

United States District Court, Ninth Circuit

June 25, 2013

ERMILIO RODRIGUEZ MORALES, Petitioner,
v.
FRED FOULK, Warden, Respondent.

ORDER SUBSTITUTING ACTING WARDEN FRED FOULK AS RESPONDENT ORDER DISMISSING THE PETITION (DOC. 1) WITH LEAVE TO FILE A FIRST AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FORM FILING DEADLINE: THIRTY (30) DAYS

BARBARA A. McAULIFFE, Magistrate Judge.

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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on April 4, 2013, and transferred to this Court from the United States District Court, Central District of California, on May 9, 2013.

I. Substitution of Respondent

Before the case was transferred, the Respondent was directed to respond to the petition. On May 6, 2013, Respondent filed a motion to dismiss the petition for lack of jurisdiction or, in the alternative, to transfer the petition to this Court because Petitioner was convicted in the Superior Court of the State of California, County of Kern, a trial court that is located within the territory of this district. In the motion, the Respondent stated that although Petitioner failed to name a respondent other than "Warden, " Fred Foulk is the acting warden at High Desert State Prison, where Petitioner is currently incarcerated. (Doc. 5, 1, n.1.)

Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution.

Here, it is clear that in responding to the petition, Respondent waived any objection to jurisdiction over the Respondent. Respondent further confirmed that the acting warden at Petitioner's institution of confinement in Warden Fred Foulk.

Accordingly, it will be ordered that Warden Fred Foulk be substituted as Respondent.

II. 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; rather, 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.

Further, 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).

Here, Petitioner alleges that he is serving a twenty-five-year sentence imposed in the Kern County Superior Court on December 17, 2010, for violating Cal. Pen. Code §§ 288a(c)(2), 288(a)(b)(2), and 288(c)(1). Petitioner alleges the following claims: 1) "SINCE RECANTATIONS RESULT IN REVERSAL PROCEEDING DECLARATION FROM SELINA SHOULD SEEK A STOLL EVALUATION HEARING ACTUAL INNOCENCE" (doc. 1, 3); 2) "TO BE SUPPRESSION OF EVIDENCE WHICH CAN BE SUPPORTED BY THE FACTS WHICH ARE BEING PRESENTED IN THE COURT" (id.); and 3) "MS SINGH DID NOT PRESERVE THE ISSUE ON THE CREDIBLE IN HER TESTIMONY" (id. at 4).

Petitioner states supporting facts for each of these claims. The facts stated in support of the first claim were that Petitioner's trial attorney was ineffective, and that due process was violated under the sentencing guidelines that should have been ...


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