Opinion
No. C 04-0162 CRB (PR) (Docs # 2 3)
May 10, 2004
ORDER OF DISMISSAL WITH LEAVE TO AMEND
Petitioner, a state prisoner currently incarcerated at High Desert State Prison in Susanville, California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. He also seeks appointment of counsel and leave to proceed in forma pauperis ("IFP') under 28 U.S.C. § 1915.
BACKGROUND
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of two counts of assault with a deadly weapon and certain other related crimes. On or about August 16, 2001, he was sentenced to 8 years and 8 months in state prison.
Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California. He also sought collateral relief from the state courts. The Supreme Court of California denied his last petition for state habeas relief on November 12, 2003.
DISCUSSION
A. Standard of ReviewThis court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243. It also may dismiss with leave to amend if the petitioner does not state his claims with sufficient specificity. See Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990); Jarvis v. Nelson. 440 F.2d 13, 14 (9th Cir. 1971).
B. Legal Claims
Petitioner alleges in his petition that his "claims and supporting facts are set out in the attached Petition for Review Petition for Writ of Habeas Corpus." Pet. at 6. Unfortunately, there is no such attachment to the petition or any other indication in the petition as to the specifics of petitioner's claims. The petition must be dismissed with leave to amend so petitioner can state his claims with specificity.See id .
C. Requests for counsel and leave to proceed IFP
Petitioner's request for appointment of counsel (doc # 3) is DENIED without prejudice to renewing after he sets out his claims. Good cause shown, however, his request to proceed IFP (doc # 2) is GRANTED.
CONCLUSION
For the foregoing reasons, the petition is dismissed with leave to amend, as indicated above, within 30 days of this order. The amended pleading must include the caption and civil case number used in this order and the words AMENDMENT TO PETITION on the first page. Failure to file a proper amendment to the petition within the designated time will result in the dismissal of this action.
SO ORDERED.