Opinion
ORDER DISMISSING PETITION WITH LEAVE TO FILE AMENDED PETITION ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER BLANK PETITION FOR WRIT OF HABEAS CORPUS
GARY S. AUSTIN, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
On April 10, 2012, Petitioner filed an application for leave to file a second or successive petition in the Ninth Circuit Court of Appeals. On September 5, 2012, the Ninth Circuit determined that the application was unnecessary to the extent that Petitioner had not yet had federal review of his challenges to his conviction for attempting to prevent or dissuade a witness from testifying in violation of Cal. Penal Code § 136.1, Kern County Superior Court case no. BF109616A. Therefore, the Ninth Circuit ordered the matter transferred to this Court. On September 11, 2012, the case was received in this Court.
The Ninth Circuit transferred the case with the application as the operative pleading. While the application served its purpose in the circuit court, it is deficient in this Court as a petition for writ of habeas corpus. While it is clear Petitioner challenges the above conviction, Petitioner fails to present specific claims for relief.
DISCUSSION
A. Procedural Grounds for Summary Dismissal
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
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. A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson , 440 F.2d 13, 14 (9th Cir. 1971).
B. Failure to State a Discernable Claim
Petitioner must state his claims with sufficient specificity. See Hendricks v. Vasquez 908 F.2d at 491-92 ; Wacht v. Cardwell , 604 F.2d 1245, 1246-47 (9th Cir.1979). Rule 2(c) of the Rules Governing Section 2254 Cases (emphasis added) states:
The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
The application presented to the Ninth Circuit does not present specific grounds for relief or facts in support. Therefore, the application is deficient as a petition and must be dismissed. Petitioner will be given an opportunity to file a first amended petition to properly set forth his grounds for relief. The Clerk of Court will be directed to provide Petitioner with a blank form petition in order to assist Petitioner in presenting a complete petition. Petitioner is advised that the amended petition should be titled "First Amended Petition" and must reference the instant case number. He is further advised that his claims must only pertain to the conviction for dissuading a witness, insofar as he has already sought federal review on his other convictions. Petitioner is forewarned that failure to file an amended petition in compliance with this order within the allotted time will result in dismissal and termination of the action.
ORDER
Accordingly, the application having been considered as a petition for writ of habeas corpus is hereby DISMISSED. Petitioner is GRANTED thirty (30) days from the date of service of this order to file an amended petition in compliance with this order. The Clerk of Court is DIRECTED to send Petitioner a form petition pursuant to 28 U.S.C. § 2254.
IT IS SO ORDERED.
PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
(If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. § 2255, in the federal court which entered the judgment.)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Instructions-Read Carefully
(1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.
(2) If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.
(3) Upon receipt of a fee of $5 your petition will be filed if it is in proper order.
(4) If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a petition of this type, you may request permission to proceed in forma pauperis, in which event you must execute form AO-240 or other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state of in different states, you must file separate petitions as to each court.
(6) You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction.
(7) When the petition is fully completed, the original and at least two copies must be mailed to the Clerk of the United States District Court whose address is
(8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.
(1)