United States District Court, E.D. California
CARLOS G. SANCHEZ, Petitioner,
S. FRAUENHEIM, Respondent.
ORDER DISMISSING FIRST AMENDED PETITION WITH LEAVE TO
AMEND WITHIN 30 DAYS (Doc. 10)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On November 19, 2015, he filed an original
petition, consisting of 96 pages. After an initial screening
of the petition, the Magistrate Judge filed findings and a
recommendation to dismiss the original petition with leave to
amend, which the Court adopted on March 8, 2016. The
Magistrate Judge wrote:
Due to the disorganized state of the [federal] petition and
its exhibits, the Court is uncertain about the
post-conviction actions in state court. A statement in the
[federal] petition refers to the California Court of
Appeal's rejecting Petitioner's direct appeal but
provides no date of disposition. A incomplete portion of a
habeas petition to the [California] Supreme Court is included
in the record, but the [federal] petition itself includes no
specific information regarding any petition to the California
Supreme Court. The [federal] petition also includes vague
statements that appear to concede that the claim is not
Doc. 7 at 2.
Magistrate Judge continued to describe what was wrong with
the petition and how Petitioner should amend it:
The petition and its exhibits arrived at the Court in
completely disorganized form. Portions of at least two
petitions, one bearing a caption identifying the California
Supreme Court and another bearing a caption identifying this
court are interspersed within 96 pages of briefs, exhibits,
and transcripts. Because the undersigned cannot reliably
determine the nature of the petition being presented to it
nor confidently sort out the various exhibits, the
undersigned recommends that the Court dismiss the petition
with leave to amend to permit Petitioner to submit an
organized petition for writ of habeas corpus pursuant to 42
U.S.C. § 2254, followed first by the statement of points
and authorities, should Petitioner elect to include one, and
then by those materials intended to function as exhibits to
the federal petition.
In addition, Petitioner should ensure that he has completed
all questions set forth on the federal form of petition for
writ of habeas corpus pursuant to 42 U.S.C. § 2254. This
will enable the Court to understand the underlying procedural
history and other information necessary in addressing the
Doc. 7 at 2-3.
the Magistrate Judge explained that the claim, to the extent
that she could discern it, was vague and would require
dismissal if it was not amended to include sufficient factual
detail to support Petitioner's claim:
To the extent that the undersigned can determine, the
petition includes a single claim: "violation of the
federal constitution and ineffective assistance of
counsel." Doc. 1 at 60. As supporting facts, the
petition states: "my public defender refu[sed] to show
the pr[oof] that I had or allow me to cross-examine the
victim." Id. The claim appears to contemplate a
claim of ineffective assistance of counsel as well as one or
more additional constitutional claims. The statement's
brevity and lack of detail make it impossible for the
undersigned to understand what Petitioner intended to claim.
Allegations in a petition that are vague, conclusory,
patently frivolous or false, or palpably incredible are
subject to summary dismissal. Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990). The undersigned recommends
that the Court dismiss the petition with leave to amend to
allow Petitioner to state his claims with more specificity,
to set forth briefly the factual basis for each claim, and to
indicate which exhibit(s), if any, relate to a specific
Doc. 7 at 3.
12, 2016, Petitioner filed the first amended petition for
writ of habeas corpus, a three-page document that omitted all
of the supplementary material provided in the original
petition. Although the findings and recommendations
explicitly outlined what needed to be included in the
petition to allow it to go forward, Petitioner made no
apparent effort to comply with the Court's directions. He
neither completed the form petition nor clearly articulated
one or more claims and the factual basis of each.
appears to assume that the Court will appoint counsel on his
behalf if he fails to complete the form petition. His
confidence in that strategy is misplaced. In habeas
proceedings, no absolute right to appointment of counsel
currently exists. See, e.g., Anderson v. Heinze, 258
F.2d 479, 481 (9th Cir. 1958); Mitchell v.
Wyrick, 727 F.2d 773, 774 (8th Cir. 1984).
Although a court may appoint counsel at any stage of the case
"if the interests of justice so require" (18 U.S.C.
§ 3006A(a)(2)(B); Rule 8(c), Rules Governing Section
2254 Cases), the Court is unable to determine whether
appointment of an attorney would ...