United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED PETITION WITH LEAVE TO
FILE A SECOND AMENDED PETITION
K. OBERTO, UNITED STATES MAGISTRATE JUDGE.
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.)
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
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
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
(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, Rule 2(c) of the Rules Governing Section 2254 Cases
requires that the petition:
(1) Specify all the grounds for relief available to the
(2) State the facts supporting each ...