United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel and in forma
pauperis. Respondent moves to dismiss the petition on the
grounds that petitioner fails to identify the claims he
raises in this action. Petitioner filed an opposition, and
respondent filed a reply. As set forth below,
respondent's motion to dismiss is granted, but petitioner
is granted leave to file an amended petition.
Motion to Dismiss
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court. . . .” Id. The Court of Appeals for the
Ninth Circuit has referred to a respondent's motion to
dismiss as a request for the court to dismiss under Rule 4 of
the Rules Governing § 2254 Cases. See, e.g.,
O'Bremski v. Maass, 915 F.2d 418, 420 (1991).
Accordingly, the court reviews respondent's motion to
dismiss pursuant to its authority under Rule 4.
2(c) of the Rules Governing Section 2254 Cases states that
the petition “shall set forth in summary form the facts
supporting each of the grounds . . . specified [in the
petition].” Rule 2(c), 28 U.S.C. foll. § 2254.
See also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th
Cir. 1970) (district court's dismissal of federal habeas
proceeding affirmed where petitioner made conclusory
allegations instead of factual allegations showing that he
was entitled to relief).
instant petition violates Rule 2(c). Petitioner alleged he is
raising four grounds for relief. In ground one, he stated,
“see attached points & authorities” and
“attached statement of facts.” (ECF No. 1 at 5.)
In ground two, he stated “see attached briefs.”
(ECF No. 1 at 7.) In ground three, petitioner wrote:
“Direct Appeal only.” (ECF No. 1 at 8.) In ground
four, he wrote, “Direct Appeal Only, ” and
“see: Direct Appeal briefs only.” (ECF No. 1 at
10.) Petitioner included no allegations in his petition that
would assist respondent, or the court, in determining what
four claims petitioner is bringing in this action.
argued by respondent, such generalized references to the
attachments fail to specifically identify each of the four
claims petitioner intends to bring before this court.
Although petitioner states he raises four claims, petitioner
only raised two claims on direct appeal (insufficiency of
evidence and sentencing error claims) (ECF No. 1 at 18-19,
38-77), and only raised one claim (insufficiency of the
evidence) in his petition for review before the
California Supreme Court (ECF No. 1 at 57-77). Thus, the
petition is unclear as to the claims petitioner intends to
pursue in this federal action.
opposition, petitioner again fails to identify the claims he
seeks to pursue. Rather, he asks the court to liberally
interpret his pleadings with leniency and understanding, and
states he is at a loss without counsel. In addition,
petitioner states that the prison law library is not adequate
and has not been operating as required. (ECF No. 16 at 1.)
courts are required to liberally construe pro se pleadings,
the petition must identify the claims he intends to pursue on
habeas. Hines v. Napolitano, 2007 WL 2859745 (S.D.
Cal. Sept. 26, 2007) (the court is not required to ferret out
grounds for relief). In order to satisfy Rule 2(c),
petitioner must point to a “real possibility of
constitutional error.” Cf. Blackledge v.
Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation
marks omitted). Because the petition directs the reader to
briefing that identifies only two claims, yet petitioner
generically alleges he raises four claims, it is unclear both
to respondent and the court exactly what claims petitioner
intends to pursue. The form petition specifically provides
sections for petitioner to identify the specific claim or
ground upon which relief is sought. A petition should be
sufficiently specific to permit the respondent to assert
appropriate objections and defenses. Harris v.
Allen, 739 F.Supp. 564, 565 (W.D. Okla.1989). Here,
petitioner's failure to identify each ground for relief
in the petition prevents respondent from being able to assert
appropriate objections and defenses.
the undersigned grants respondent's motion, but grants
petitioner leave to file an amended petition. In such amended
petition, petitioner must specifically identify each ...