Opinion
4:19CV3073
07-25-2019
RAUL CALDERON, Petitioner, v. SCOTT FRAKES, Director N.D.C.S; Respondent.
MEMORANDUM AND ORDER
This matter is before the court on preliminary review of Petitioner Raul Calderon's Petition for Writ of Habeas Corpus (filing no. 1) brought pursuant to 28 U.S.C. § 2254 on July 22, 2019. However, this matter will not proceed further until Petitioner cures the deficiencies discussed below.
First, Petitioner has not signed the petition under penalty of perjury. See, e.g. 28 U.S.C. § 2242 and Rule 2(c)(5) of the Rules Governing Section 2254 Cases in the United States District Courts.
Second, a habeas corpus petition must "substantially follow either the form appended to [the Rules Governing Section 2254 Cases in the United States District Courts], or a form prescribed by a local district-court rule." See Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. Here, Petitioner did not use the Form AO 241, Petition for Writ of Habeas Corpus by a Person in State Custody. Rather, he submitted a one-page, hand-written document that does not clearly indicate the judgment challenged or the grounds alleged.
Based on these deficiencies, Petitioner's petition is deemed insufficient and the court will not act upon it. However, on the court's own motion, Petitioner will have 30 days in which to file an amended petition for writ of habeas corpus.
IT IS THEREFORE ORDERED that:
1. The pending Petition (filing no. 1) is deemed insufficient and the court will not act upon it.
2. By August 26, 2019, Petitioner shall file an amended petition for writ of habeas corpus that is originally signed under penalty of perjury. Petitioner is encouraged to use the enclosed official Form AO 241. To avoid confusion, any document Petitioner sends to the clerk of the court for filing in this case must clearly display the case number. Failure to file an amended petition in accordance with this Memorandum and Order will result in dismissal of this matter without further notice.
3. The clerk of the court is directed to send to Petitioner the Form AO 241 ("Petition for Relief From a Conviction or Sentence By a Person in State Custody").
4. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: August 26, 2019: Check for amended petition.
5. Petitioner's Motion for Appointment of Counsel (filing no. 2) is denied without prejudice to reassertion after Petitioner files an amended petition in accordance with this Memorandum and Order.
Dated this 25th day of July, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge