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Delacruz v. Sherman

United States District Court, E.D. California

September 19, 2019

GUSTAVO DELACRUZ, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

          ORDER DISMISSING FIRST AMENDED PETITION AND DIRECTING PETITIONER TO FILE A SECOND AMENDED PETITION

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner filed a Petition for Writ of Habeas Corpus on June 19, 2019. (Doc. 1.) Following a preliminary screening of the petition, the Court determined that Petitioner failed to present any cognizable grounds for relief or any facts in support. Therefore, on July 15, 2019, the Court issued an order directing Petitioner to submit a first amended petition. (Doc. 5.) Petitioner filed a first amended petition on August 9, 2019, which is presently before the Court. (Doc. 6.) The Court has screened the first amended petition and finds it too fails to state a cognizable federal claim for relief. Therefore, the Court will dismiss the amended petition and direct Petitioner 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

         The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

The Supreme Court, a Justice thereof, 3 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).

         In 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).

         In addition to the above, Rule 2(c) of the Rules Governing Section 2254 ...


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