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Fisher v. Arresting Agent

United States District Court, E.D. California

May 12, 2014

GARY FISHER, Petitioner,
v.
ARRESTING AGENT, et al., Respondents.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR FAILING TO STATE COGNIZABLE CLAIM

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. ยง 2254.

Petitioner filed the instant petition for writ of habeas corpus on March 11, 2014. (Pet., ECF No. 1.) In the petition Petitioner sets forth that he was convicted in Kern County. However, the Court is unable to discern the bases, if any, for his legal challenges to his conviction. (Id.)

I. DISCUSSION

A. Procedural Grounds for Summary Dismissal

Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. 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).

B. Petitioner's Claims

Petitioner presents two claims in his petition. Claim one in its entirety reads:

Ask yourself Judge - How much alcohol could I drink in that timeframe? Did not have even A-5-B alcohol terms on my parole for this chum to ever stop, and violently be an asshole!

(Pet., ECF No. 1.) Petitioner's second claim states:

I was smoking a cigarette 20 minute till the bus arrived. Did this guy just talk to some rouge agents? He had either serious issue with me, or didn't get layed nite before. Even a good agent, after serving the time I did, want to drink a ...

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