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Fisher v. Barrios

United States District Court, E.D. California

July 2, 2014

GARY FRANCIS FISHER, Petitioner,
v.
RICK BARRIOS, et al., Respondent.

ORDER REQUIRING PETITIONER TO SUBMIT A SECOND AMENDED PETITION 30-DAY DEADLINE ORDER DIRECTING CLERK OF THE COURT TO SEND PETITIONER A FORM FOR FILING HABEAS CORPUS PETITION PURSUANT TO 28 U.S.C. § 2254

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a state prisoner proceeding through retained counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner filed the instant petition on March 13, 2014, in the U.S. District Court for the Northern District of California, and was transferred to this Court on May 14, 2014. (Doc. 14). It appears that Petitioner is challenging a 2010 conviction by plea of nolo contendere in the Kern County Superior Court, Bakersfield, California. Beyond that, the original petition is a collection of unrelated statements, arguments, and quotations, none of which are intelligible to the Court or comprehensible as a cognizable federal habeas claim. (Doc. 1). To the contrary, many of Petitioner's "claims" in the original petition appear to indicate that he is asserting a civil rights complaint pursuant to 42 U.S.C. § 1983. Petitioner's claim of "damages" supports this view.

However, before the Court could conduct a preliminary screening of the petition, Petitioner filed a first amended petition on June 18, 2014. (Doc. 24). The 6-page handwritten first amended petition does not appear to state any kind of claim sounding in habeas corpus. Rather, it appears to assert a need for additional court records and medical files. However, nowhere in the first amended petition are the specific records and files designated. Nor does Petitioner indicate precisely why those records and files are necessary nor to what they might pertain.

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. Insufficient Information And Failure To State A Cognizable Habeas Claim.

A preliminary review of the first amended petition indicates that Petitioner has not provided sufficient information regarding his claims for this case to proceed.

The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States. See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody..." Preiser v. Rodriguez , 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2).

Petitioner does not allege a violation of the Constitution or federal law, nor does he argue that he is in custody in violation of the Constitution or federal law. Petitioner does not allege that the adjudication of his claims in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts...." 28 U.S.C. § 2254.

Moreover, Petitioner has provided so little information in the first amended petition that the Court is unable to discern any claims at all, let alone cognizable federal habeas claims. Rule 2 of the Rules ...


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