United States District Court, E.D. California
Gregory G. Hollows United States Magistrate Judge.
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241,
together with a request to proceed in forma pauperis.
of the affidavit reveals petitioner is unable to afford the
costs of this action. Accordingly, leave to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
of the Rules Governing Section 2254 Cases provides that the
petition: “shall specify all the grounds for relief
which are available to the petitioner and of which he has or
by the exercise of reasonable diligence should have knowledge
and shall set forth in summary form the facts supporting each
of the grounds thus specified.” Rule 2(c), Rules
Governing Section 2254 Cases. Petitioner must also clearly
state the relief sought in the petition. Id.
Additionally, the Advisory Committee Notes to Rule 4 explains
that “notice pleading is not sufficient, for the
petition is expected to state facts that point to a real
possibility of constitutional error.” Advisory
Committee Notes to Rule 4; see Blackledge v.
Allison, 431 U.S. 63, 75, n.7 (1977).
petitioner alleges 55 grounds for relief in his petition. In
majority of the claims, petitioner refers the court to review
38 exhibits that encompass almost 400 pages in the 1,
202-page petition. Although petitioner provides some
supporting facts for his claims, petitioner may not simply
refer the court and respondent to review hundreds of pages in
support of his claim without setting forth each claim for
relief and summarizing the facts he alleges support each of
the identified claims. Accordingly, the petition fails to
comply with Rule 2(c), Rules Governing Section 2254 Cases.
The court will grant petitioner leave to amend. Rule 4, Rules
Governing Section 2254 Cases.
the exhaustion of state court remedies is a prerequisite to
the granting of a petition for writ of habeas corpus. 28
U.S.C. § 2254(b)(1). A petitioner satisfies the
exhaustion requirement by providing the highest state
court (here, the California Supreme 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. 1985), cert. denied, 478 U.S.
state court has had an opportunity to rule on the merits when
the petitioner has fairly presented the claim to that court.
The fair presentation requirement is met where the petitioner
has described the operative facts and legal theory on which
his claim is based. Picard, 404 U.S. at 277-78.
Generally, it is “not enough that all the facts
necessary to support the federal claim were before the state
courts . . . or that a somewhat similar state-law claim was
made.” Anderson v. Harless, 459 U.S. 4, 6
[i]f state courts are to be given the opportunity to correct
alleged violations of prisoners' federal rights, they
must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution. If a
habeas petitioner wishes to claim that an evidentiary ruling
at a state court trial denied him the due process of law
guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.
Duncan v. Henry, 513 U.S. 364, 365 (1995).
Accordingly, “a claim for relief in habeas corpus must
include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle
the petitioner to relief.” Gray v. Netherland,
518 U.S. 152, 116 S.Ct. 2074, 2081 (1996). The United States
Supreme Court has held that a federal district court may not
entertain a petition for habeas corpus unless the petitioner
has exhausted state remedies with respect to each of the
claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A
mixed petition containing both exhausted and unexhausted
claims must be dismissed. Here, it is unclear to the court
whether petitioner has fully exhausted each of his claims or
whether this is a mixed petition. Therefore, petitioner will
be given an opportunity to amend his petition to clearly
state whether each of his claims has been fairly
presented to the highest state court.
IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis;
2. Petitioner's application for writ of habeas corpus is
dismissed with leave to amend within thirty days from the
date of this order. Petitioner will take care to carefully
comply with the instructions provided above when filing an
3. Any amended petition must bear the case number assigned to
this action and the title “First Amended
4. The Clerk of the Court is directed to send petitioner the
court's form application for ...