Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barger v. Director, CDCR

United States District Court, E.D. California

March 5, 2015

GARY DALE BARGER, Petitioner,
v.
DIRECTOR, CDCR, Respondent.

THIRTY 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

ORDER REQUIRING PETITIONER TO SUBMIT AN AMENDED PETITION

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition on February 24, 2015, in the Northern District of California. (Doc. 1). The case was transferred to this Court on February 26, 2015. (Doc. 5).

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

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

Rule 2 of the Rules Governing Section 2254 Cases provides that the petition:

"... shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified."

Petitioner must also clearly state the relief sought in the petition. Id. Additionally, the Advisory Committee Notes to Rule 4 explains that "... [N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Advisory Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n. 7, 97 S.Ct. 1621 (1977).

Here, Petitioner appears to challenge a January 5, 2010 conviction in the Kern County Superior Court; however, Petitioner does not allege the nature of the conviction, the length of the sentence, or any other details regarding the conviction he purports to challenge. Petitioner mentions a parole revocation proceeding resulting from an incident in which Petitioner was found consuming alcohol, allegedly in violation of the terms of his parole. Whether this is the 2010 conviction Petitioner is challenging, or whether it is a separate conviction, is unclear. Moreover, the only allegation Petitioner raises is that this was a "sham" prosecution. Petitioner provides no details explaining why the prosecution was a "sham, " nor, specifically, what constitutional violations he alleges took place.

In sum, Petitioner submitted a petition that fails to comply with the requirements of Rule 2(c). The Court cannot discern any specific claims for relief from the information provided nor what kind of relief Petitioner might be seeking. At one juncture, Petitioner argues that he has not exhausted this claim because he is not challenging the fact or duration of his confinement; rather he is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.