United States District Court, E.D. California
ANGELITO A. ROMERO, Petitioner,
C. KOENIG, Respondent.
ORDER DISMISSING PETITION WITH LEAVE TO FILE A FIRST
AMENDED PETITION [THIRTY-DAY DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
filed a Petition for Writ of Habeas Corpus on November 13,
2019. A preliminary screening of the petition reveals that
the petition fails to present any cognizable grounds for
relief or any facts in support. Therefore, the Court will
DISMISS the petition with leave to file an amended petition.
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 requires
that the petition:
(1) Specify all the grounds for relief available to the