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Covington v. Adams

United States District Court, E.D. California
Feb 17, 2006
No. CIV S-06-0222 FCD DAD P (E.D. Cal. Feb. 17, 2006)

Opinion

No. CIV S-06-0222 FCD DAD P.

February 17, 2006


ORDER


Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his petition and a motion for leave to proceed in forma pauperis in the United States District Court for the Northern District of California on December 1, 2005. The Northern District court found that petitioner is challenging a judgment of conviction imposed in 2001 by the Sacramento County Superior Court for vehicular manslaughter and leaving the scene of an accident. Accordingly, the U.S. District Court for the Northern District of California transferred the case to the Eastern District by order filed January 31, 2006.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted.See 28 U.S.C. § 1915(a).

The district court must examine a habeas petition to determine whether the pleading complies with the rules that govern such cases and whether the respondent should be required to file a response. Rules 2 4, Fed.R. Governing § 2254 Cases in the District Courts. A federal habeas petition "must substantially follow" either the form appended to the Federal Rules Governing § 2254 Cases or a form prescribed by a local district-court rule. Rule 2(d), Fed.R. Governing § 2254 Cases in the District Courts. In the present case, petitioner has submitted his petition using the first two-pages of the form petition provided by the U.S. District Court for the Northern District of California, and attached what appears to be his state petition for review. Because it is not clear whether petitioner has exhausted state court remedies for his federal claims, the petition will be dismissed with leave to file an amended petition that complies with the applicable rules and this order.

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting them to the federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 276 (1971); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). In his amended petition, petitioner must answer each question on the form petition, including the questions concerning the petitions he filed in state court.

In addition, in his amended complaint, petitioner must identify each of his federal claims and the grounds that support each claim. Merely attaching a copy of his state court petition is not sufficient. Petitioner must use the form habeas petition provided by this court, and shall complete all parts of the form. If additional space is required in order to provide the information required on the standard form, petitioner may continue responses as needed on pages that follow the same format as the form and are clearly linked to the form by page number or question number. Petitioner is required to allege his grounds for relief on the form and on continuation pages that follow the same format as the form. Petitioner must set out, on the form and continuation pages, a brief summary of supporting facts for each separate ground for relief.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's application to proceed in forma pauperis is granted;

2. The petition for writ of habeas corpus is dismissed with leave to amend;

3. Petitioner is granted thirty days from the date of this order to file an amended petition using the form provided by the court; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;" and the amended petition must be in compliance with this order and Rule 2 of the Federal Rules Governing § 2254 Cases;

4. The Clerk of the Court is directed to provide petitioner with a copy of the court's form petition for a writ of habeas corpus; and

5. Petitioner's failure to file an amended petition in accordance with this order will result in the dismissal of this action.


Summaries of

Covington v. Adams

United States District Court, E.D. California
Feb 17, 2006
No. CIV S-06-0222 FCD DAD P (E.D. Cal. Feb. 17, 2006)
Case details for

Covington v. Adams

Case Details

Full title:JULIO G. COVINGTON, Petitioner, v. DARRAL G. ADAMS, Respondent

Court:United States District Court, E.D. California

Date published: Feb 17, 2006

Citations

No. CIV S-06-0222 FCD DAD P (E.D. Cal. Feb. 17, 2006)