Opinion
No. CV-05-0938-PHX-DGC (ECV).
November 16, 2005
ORDER
Petitioner Cecilia Hernandez, presently confined in the Arizona State Prison Complex in Safford, Arizona, has filed a pro se Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner has paid the five dollar filing fee.
A. Incomplete Form.
Petitioner was previously advised to file an Amended Petition on the court-approved form. He failed to do so. The Rules Governing Section 2254 Cases allow the Court, by local rule, to prescribe a form to be used for filing a § 2254 action. See Rule 2(d), Rules Governing Sect ion 2254 Actions. Under this Court's local rule, Petitioner must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2254.See LRCiv 3.5(a).
Petitioner has technically filed his Petition on the court-approved form, but he has not used the form. Specifically, Petitioner has failed to fill in the blanks on the form to indicate the conviction he is challenging, the case number, date of judgment, his sentence, the offenses, and whether he pled guilty or was tried and his precise constitutional grounds for relief.
This information is necessary for the Court to evaluate, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, whether Petitioner's action is appropriately brought in habeas corpus. A § 2254 action is available to a "person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. To determine whether a petition is properly filed under § 2254, the Court must ask whether the petitioner is "in custody pursuant to a state judgment." See Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004) (citation omitted). This is a "status inquiry into the source of the petitioner's custody, and not an inquiry into the target of the petitioner's challenge." White v. Lambert, 370 F.3d 1002, 1007-08 (9th Cir.), cert. denied, 125 S. Ct. 503 (2004). Because Petitioner failed to fully complete the court approved form, it is unclear whether his Petition meets this standard. Accordingly, Petitioner will be provided with one final opportunity to amend in order to allow Petitioner to re-file his application on the court-approved form within thirty days.
B. Rule 41 Cautionary Notice.
Petitioner should note that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any court order), cert. denied, 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED:
(1) That Petitioner shall have 30 days from the date this Order is filed to file an Amended Petition using the court-approved form. The Amended Petition must be retyped or rewritten in its entirety and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by the Petitioner should be clearly designated as such on the face of the document;
(2) That the Clerk of Court shall dismiss this action without prejudice and without further notice to the Petitioner if he fails to file an Amended Petition within 30 days of the date this Order is filed;
(3) That at all times during the pendency of this action, Petitioner shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure;
(4) That aside from the two copies of the petition or amended petition that must be submitted pursuant to LRCiv 3.5(a), a clear, legible copy of every other document filed shall accompany each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to comply with this requirement may result in the pleading or document being stricken without further notice to Petitioner; and
(5) That the Clerk of Court is directed to provide to Petitioner a current court-approved form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
FORM