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Gao v. Doe

United States District Court, E.D. California

September 5, 2019

JASON ZHANG GAO, Petitioner,
v.
DOE, Warden, Respondent.

          ORDER DISMISSING FIRST AMENDED PETITION WITH LEAVE TO FILE A SECOND AMENDED PETITION

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE.

         Petitioner filed a federal habeas petition in the United States District Court for the Northern District of California on June 6, 2019. (Doc. 1.) On July 30, 2019, the Court determined venue was proper in the Eastern District and transferred the case to this district. (Doc. 7.)

         A preliminary screening of the petition revealed that the petition failed to present any cognizable grounds for relief. Thus, on August 13, 2019, the Court dismissed the petition with leave to file a First Amended Petition. (Doc. 11.) On August 28, 2019, Petitioner filed a First Amended Petition. (Doc. 13.) For the same reasons as before, the petition fails to state a cognizable claim. Therefore, the Court will DISMISS the petition with leave to file a Second Amended Petition.

         I. DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 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.

         B. Failure to State a Cognizable Federal Claim

         As discussed in the previous order of August 13, 2019, 28 U.S.C. § 2254(a) requires that a state habeas petition be entertained “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” To succeed in a petition pursuant to 28 U.S.C. § 2254, the 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).

         In addition, Rule 2(c) of the Rules Governing Section 2254 Cases requires that the petition:

(1) Specify all the grounds for relief available to the petitioner;
(2) State the facts supporting each ...

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