United States District Court, E.D. California
ORDER DISMISSING PETITION WITH LEAVE TO FILE A FIRST
AMENDED PETITION [THIRTY DAY DEADLINE]
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
filed a federal habeas petition in the Central District of
California on October 31, 2017. On November 7, 2017, the
District Court determined venue was proper in the Eastern
District and transferred the case. A preliminary screening of
the petition reveals that the petition fails to present any
cognizable grounds for relief. Therefore, the Court will
DISMISS the petition with leave to file an amended petition.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases requires the Court
to make a preliminary review of each petition for writ of
habeas corpus. The Court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court . . . .” Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990). 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.
Failure to State a Cognizable Federal Claim
The basic scope of habeas corpus is prescribed by statute.
Title 28 U.S.C. § 2254(a) states:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
(emphasis added). See also Rule 1 to the Rules
Governing Section 2254 Cases in the United States District
Court. The Supreme Court has held that “the essence of
habeas corpus is an attack by a person in custody upon the
legality of that custody . . .” Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973).
order to succeed in a petition pursuant to 28 U.S.C. §
2254, Petitioner must demonstrate that the adjudication of
his claim in state court
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2).
addition to the above, Rule 2(c) of the Rules Governing
Section 2254 ...