United States District Court, E.D. California
ANGELIQUE E. NASH, Petitioner,
ON HABEAS CORPUS, Respondent.
ORDER VACATING FINDINGS AND RECOMMENDATION (DOC. 4)
ORDER DISMISSING PETITION WITH LEAVE TO AMEND (DOC.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
filed a habeas petition on February 17, 2017, challenging her
2013 conviction in Kern County Superior Court for first
degree murder with special circumstances. Upon review of the
petition, it appeared that Petitioner had not sought relief
in the California Supreme Court. Therefore, the Court issued
a Findings and Recommendation to summarily dismiss the
petition for failure to exhaust state remedies. On March 28,
2017, Petitioner filed objections in which she states she has
in fact sought relief in the California Supreme Court.
Therefore, the Court will vacate the Findings and
Recommendation. However, the petition that was filed with the
Court contains no grounds for relief. Therefore, the petition
will be DISMISSED with leave to amend.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254 Cases. 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. Herbst v. Cook, 260 F.3d 1039 (9th
Failure to State a Claim
must state her claim with sufficient specificity. See
Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir.
1990); Wacht v. Cardwell, 604 F.2d 1245, 1246-47
(9th Cir.1979). Rule 2(c) of the Rules Governing Section 2254
Cases (emphasis added) states:
(1) specify all the grounds for relief available to the
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or
by a person authorized to sign it for the petitioner under 28
U.S.C. § 2242.
instant petition presents no claims for relief. In the space
provided on the form petition for specifying her grounds,
Petitioner indicates: “Please see attached.”
However, no memorandum setting forth any grounds for relief
is attached. The only document attached is a copy of the
appellate opinion of the Fifth Appellate District Court of
the California Court of Appeal (“Fifth DCA”). If
Petitioner intended the opinion of the appellate court to
function as her ...