United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Before the
court is petitioner's amended petition. (ECF No. 10.) For
the reasons set for the below, this court respectfully
recommends that the amended petition be dismissed as
initiated this action in 2016 by filing a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No.
1.) Petitioner then moved to amend the petition four times.
(ECF Nos. 7; 8; 9; 10.) The court denied all of the motions
to amend as moot and deemed petitioner's August 8, 2016
petition (ECF No. 10) as the operative petition in this case.
(ECF No. 14.)
amended petition, petitioner complains of an “illegal
prosecution” related to charges against him for making
criminal threats. (ECF No. 10 at 2.) Petitioner was arrested
on September 11, 2015 and is presently in custody awaiting
trial -- or, at least as of the latest version of the
petition, petitioner was still waiting to be tried).
court is required to screen all actions brought by prisoners
who seek any form of relief, including habeas relief, from a
governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must dismiss a
habeas petition or portion thereof if the prisoner raises
claims that are legally “frivolous or malicious”
or fail to state a basis on which habeas relief may be
granted. 28 U.S.C. § 1915A(b)(1), (2). This means the
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4
Governing Section 2254 Cases.
of the Rules Governing Section 2254 Cases provides that
“[t]he Federal Rules of Civil Procedure, to the extent
that they are not inconsistent with any statutory provisions
or these rules, may be applied to a proceeding under these
rules.” Drawing on the Federal Rules of Civil
Procedure, when considering whether a petition presents a
claim upon which habeas relief can be granted, the court must
accept the allegations of the petition as true, Erickson
v. Pardus, 551 U.S. 89, 94 (2007), and construe the
petition in the light most favorable to the petitioner, see
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se
pleadings are held to a less stringent standard than those
drafted by lawyers, Haines v. Kerner, 404 U.S. 519,
520 (1972), but “[i]t is well-settled that
‘[c]onclusory allegations which are not supported by a
statement of specific facts do not warrant habeas
relief.'” Jones v. Gomez, 66 F.3d 199, 204
(9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20,
26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278
F.3d 874, 878 (9th Cir. 2002) (“Pro se habeas
petitioners may not be held to the same technical standards
as litigants represented by counsel.”); Porter v.
Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he
petitioner is not entitled to the benefit of every
conceivable doubt; the court is obligated to draw only
reasonable factual inferences in the petitioner's
2(c) of the Rules Governing § 2254 Cases requires every
habeas petition to (1) specify all the grounds for relief
available to the petitioner; (2) state the facts supporting
each ground; and (3) state the relief requested. Although, as
stated above, pro se petitions receive less scrutiny for
precision than those drafted by lawyers, a petitioner must
give fair notice of his claims by stating the factual and
legal elements of each claim in a short, plain, and succinct
manner. See Mayle v. Felix, 545 U.S. 644, 648 (2005)
(“In ordinary civil proceedings ... Rule 8 of the
Federal Rules of Civil Procedure requires only 'a short
and plain statement[.] ... Rule 2(c) of the Rules Governing
Habeas Corpus Cases requires a more detailed
statement.”) Allegations in a petition that are vague,
conclusory, or palpably incredible, and that are unsupported
by a statement of specific facts, are insufficient to warrant
relief and are subject to summary dismissal. Jones v.
Gomez, 66 F.3d 199, 204-05 (9th Cir.1995); James v.
Borg, 24 F.3d 20, 26 (9th Cir.1994).
petition for a writ of habeas corpus is not a substitute for
pursuing state judicial remedies. See 28 U.S.C.
§ 2254(b). Therefore, a petition for writ of habeas
corpus should not be entertained unless the petitioner has
first exhausted his state remedies. Baldwin v.
Reese, 541 U.S. 27, 29 (2004); Castille v.
Peoples, 489 U.S. 346, 349 (1989). Concerns of comity
dictate that the State must first be afforded a full and fair
opportunity to pass upon and correct the alleged violation of
its prisoners' federal rights. See Duncan v.
Henry, 513 U.S. 364, 365 (1995). The exhaustion of state
court remedies is a prerequisite to the granting of a
petition for writ of habeas corpus. 28 U.S.C. §
has not been tried or convicted of any crimes at this stage,
so, therefore, his petition for writ of habeas corpus is
premature. A petitioner satisfies the exhaustion requirement
by providing the highest state court with a full and fair
opportunity to consider all claims before presenting them to
the federal court. Picard v. Connor, 404 U.S. 270,
276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086
(9th Cir. 1986). In order for this court to address the
petitioner's habeas claims, he must first be convicted
and sentenced by the state trial court. Thereafter,
petitioner must pursue his claims in the state courts of
appeal until the claims have been exhausted before the
California Supreme Court.
petitioner is not entitled to habeas relief and his petition
must be dismissed. For the foregoing reasons, IT IS HEREBY
RECOMMENDED that the amended petition be dismissed as
findings and recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, petitioner may file written objections with
the court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Petitioner is advised that failure to
file objections within the specified time may result in
waiver of the right to appeal the district court's order.
Martinez v. Ylst951 F.2d 1153 (9th Cir. 1991). In
his objections petitioner may address whether a certificate
of appealability should issue in the event he files an appeal