United States District Court, E.D. California
ORDER CONSTRUING AMENDED PETITION IN PART AS MOTION
TO AMEND TO NAME PROPER RESPONDENT, ORDER GRANTING MOTION TO
AMEND AND DIRECTING CLERK OF COURT TO CHANGE NAME OF
RESPONDENT, ORDER DISMISSING AMENDED PETITION AND DIRECTING
PETITIONER TO FILE A SECOND AMENDED PETITION
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
filed a Petition for Writ of Habeas Corpus on June 19, 2019
in the Northern District of California. (Doc. 1.) On June 26,
2019, the Northern District of California transferred the
petition to this Court. (Doc. 3, 4.) Following a preliminary
screening, the Court determined that the petition was
deficient in several respects. Therefore, on July 16, 2019,
the Court issued an order directing Petitioner to submit a
first amended petition. (Doc. 11.) Petitioner filed an
amended petition on August 20, 2019. (Doc. 12.) The Court
will construe the first page of this amended petition as a
motion to amend to name the proper respondent and grant the
motion. The remaining portion of the pleading appears to be
an attempt to file an amended petition. The Court has
screened the remaining portion of the amended petition and
finds it is still deficient. Therefore, the Court will
dismiss the amended petition and direct Petitioner to file a
second amended petition.
Motion to Amend
majority of the amended petition is a photocopy of
Petitioner’s original petition, including some
additional pages. The first page of the amended petition is a
handwritten addition in which Petitioner requests to
“amend this petition to add respondent Warden Davis to
answer this petition.” (Doc. 12 at 1.) Accordingly, the
Court will construe the first page of the amended petition as
a motion to amend the petition to name the proper respondent.
So construed, the Court will grant the motion to amend.
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
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).
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 Cases ...