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Nash v. On Habeas Corpus

United States District Court, E.D. California

March 30, 2017

ANGELIQUE E. NASH, Petitioner,
v.
ON HABEAS CORPUS, Respondent.

          ORDER VACATING FINDINGS AND RECOMMENDATION (DOC. 4) ORDER DISMISSING PETITION WITH LEAVE TO AMEND (DOC. 1)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 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 Cir.2001).

         B. Failure to State a Claim

         Petitioner 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:

         The petition must:

(1) specify all the grounds for relief available to the petitioner;
(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.

         The 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 ...


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