Opinion
2:21-cv-00924-WBS-JDP (HC)
06-25-2021
JOHN KUYKENDALL, Petitioner, v. UNKNOWN, Respondent.
ORDER GRANTING PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS ECF No. 8
ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE CLAIM AND GIVING LEAVE TO AMEND WITHIN SIXTY DAYS ECF No. 1
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE
Petitioner is confined at Napa State Hospital and seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boydv. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The petition cannot proceed because I cannot tell what claims are being raised.
The two-page petition does not adequately describe the claims. Petitioner states that he was not permitted to appear at an unspecified preliminary hearing. ECF No. 1 at 1. He does not state the purpose of the hearing, what proceedings it was connected to, or how his absence negatively impacted his rights. Petitioner also claims that his Eighth Amendment right to be free from cruel and unusual punishment is being violated but, again, does not explain how. Id. Petitioner may amend his petition to better explain his claims. If he chooses to do so, he should use the habeas form enclosed with this order.
It is ORDERED that:
1. Petitioner's application to proceed in forma pauperis, ECF No. 8, is granted.
2. Petitioner may file an amended petition within sixty days of this order's entry. If he does not, I will recommend that the current petition be dismissed for the reasons stated in this order.
3. The Clerk of Court is directed to send petitioner a federal habeas form.
IT IS SO ORDERED.