United States District Court, E.D. California
MARTIN V. HERNANDEZ, Petitioner,
RAYMOND D. MADDEN, Warden, Respondent.
ORDER REQUIRING PETITIONER TO SUBMIT
AN AMENDED PETITION 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
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
federal court may only grant a petition for writ of habeas
corpus if the petitioner can show that "he is in custody
in violation of the Constitution . . . ." 28 U.S.C.
§ 2254 (a). A petition for writ of habeas corpus must
specify the grounds for relief. Rule 2(c) of the Rules
Governing Section 2254 Cases. The petition must also allege
the facts surrounding petitioner’s incarceration. 28
U.S.C. § 2242. The petitioner must make specific factual
allegations that would entitle him to habeas corpus relief if
they are true. O'Bremski v. Maass, 915 F.2d 418,
420 (9th Cir.1990); United States v. Poopola, 881
F.2d 811, 812 (9th Cir. 1989). In addition, a petition
presented in pro se must be submitted upon the form
approved by the Court. See Rule 2 of the Rules
Governing Section 2254 Cases; Local Rule 81-190 This rule
ensures that all necessary information needed is before the
Court. Each ground for relief must be clearly stated
and allege what federal constitutional violation has
occurred, along with providing facts that support
the grounds for relief. If a petition contains
no grounds entitling the petitioner to habeas corpus
relief, the Court must dismiss the petition. Rule 4 of
the Rules Governing Section 2254 Cases.
in the space provided on the habeas form for listing his
claims for relief, Petitioner has not listed any claims
whatsoever; instead, he has referred the Court to his
attachments, which include what appear to be his brief in the
California Court of Appeal and a copy of a state habeas
petition filed in the Fresno County Superior Court. (Doc. 1)
However, Petitioner has not established that the additional
claim raised in the state habeas petition has been exhausted
in state court, nor has he clearly delineated the claims he
wishes to raise in these proceedings by including them on the
form provided. Rather, he has left it to this Court to
surmise and speculate that he wishes to raise the claims
contained in the attached documents.
type of filing that simply references attachments requires
the Court to expend considerable time and resources
attempting to determine which claims petitioner seeks to
raise before this Court. It is unreasonable to expect the
Court to take on such a task when the responsibility to
inform the Court lies solely with
Petitioner. The proper use of the form petition
results in administrative convenience of benefit to both
Petitioner and the Court. Thus, Petitioner will be required
to resubmit the form petition once it has been completely
filled out as is stated on the form. A petitioner may submit
attachments to the form; however, a simple reference to the
attached where specific information is required is not
Court will not permit these proceedings to continue based on
surmise and speculation about what Petitioner is or may be
contending. It is Petitioner’s responsibility to
adequately plead his habeas claims in the form provided by
the Court, not in a compilation of documents he may choose to
attach to the form. Because Petitioner has not clearly
set for his grounds for relief, a determination as to whether
the claims have been exhausted in the state courts is
impossible. In addition to listing his grounds for relief,
Petitioner must tell the Court which claims were raised at
which court. This information must include the dates of
filing and disposition so as to determine whether Petitioner
has exhausted his state remedies and is in compliance with
the limitations period prescribed by 28 U.S.C.
§2244(d)(1). Without this information, the Court cannot
proceed to the merits of the petition.
the Court ORDERS:
1. The petition for writ of habeas corpus is DISMISSED.
Petitioner is GRANTED 30 days from the date of service of
this Order to SUBMIT a FIRST AMENDED PETITION that is in
compliance with this Order.
2. The Clerk of the Court is DIRECTED to send Petitioner a
blank form petition for petitioners filing pursuant to 28
U.S.C. § 2254.
is forewarned that his failure to comply with this Order may
result in an Order of Dismissal or a Recommendation that the
petition be dismissed pursuant to Local Rule 110.
Petitioners are not precluded from
submitting attachments or exhibits to the petition; however,
the Court will not determine a petitioner's claims for
him based solely on his attachments.
Petitioner should note that a one year
period of limitations exists for cases filed pursuant to
§2254. In most cases, the one year limitation period
starts to run on the date the California Supreme Court denied
petitioner’s direct review. The limitations period is
tolled while a properly filed request for post-conviction or
other collateral review is pending in state court. 28 U.S.C.
§ 2244(d)(2). However, the running of the limitation
period is not tolled for the time an application for