Martinez v. Warden

Full title: CHRISTIAN MARTINEZ, Petitioner v. WARDEN, Respondent

Court: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

Date published: Dec 21, 2011

Case No. CV 11-9573-VAP (MLG) (C.D. Cal. Dec. 21, 2011)

Opinion

Case No. CV 11-9573-VAP (MLG)

12-21-2011

CHRISTIAN MARTINEZ, Petitioner v. WARDEN, Respondent

Marc L. Goldman

MEMORANDUM AND ORDER DISMISSING

FIRST AMENDED PETITION FOR WRIT

OF HABEAS CORPUS WITH LEAVE TO

AMEND

Petitioner filed this petition for writ of habeas corpus on November 16, 2011. On November 22, 2011, the petition was dismissed with leave to amend because it did not set forth the facts or legal theories supporting Petitioner's claim for relief and because the petition failed to provide the Court with the date of filing of each of his state appeals and petitions for writ of habeas corpus. Thus, it could not be determined whether the claims for relief had been exhausted in the state courts.

On December 16, 2011, Petitioner filed a first amended petition for writ of habeas corpus. The amended petition suffers from the same deficiencies. It does not show that Petitioner ever filed a petition for review or a petition for writ of habeas corpus in the California Supreme Court. More importantly, the petition simply does not state a cognizable claim for relief. It merely states: "This witness Officer Bojorquez (sic) Maria Bojorquez called as a witness and Anna Gutierrez called a witness by Defendant." This claim is unintelligible and fails to state a cognizable claim for relief.

Based on the above-noted deficiencies, the first amended petition is DISMISSED with leave to amend. Petitioner may file a "Second Amended Petition" not later than 21 days from the date of this order. To that end, the Clerk is instructed to send to petitioner with this order a copy of the latest version of form Civ 69 - Petition for Writ of Habeas Corpus by a Person in State Custody, pen-changed to reflect "Second Amended" Petition. Petitioner is advised that he must state the facts and legal basis for his claims for relief so that they can be understood and must demonstrate that the claims for relief were presented to the California Supreme Court on direct or collateral review. Petitioner is further advised that if he fails to file a Second Amended Petition in accordance with the requirements of this order, the action will be subject to dismissal without further notice.

_________________________

Marc L. Goldman

United States Magistrate Judge