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Quintero-Mendoza v. Benov

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Dec 11, 2013
1:13-cv-01885 AWI GSA HC (E.D. Cal. Dec. 11, 2013)

Opinion

1:13-cv-01885 AWI GSA HC

12-11-2013

SALVADORE QUINTERO-MENDOZA, Petitioner, v. MICHAEL L. BENOV, Warden, Respondent.


ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING PETITIONER LEAVE TO FILE AMENDED PETITION ORDER DIRECTING CLERK OF COURT TO MAIL PETITIONER A BLANK HABEAS FORM [THIRTY DAY DEADLINE]

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

DISCUSSION

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). 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. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 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).

Rule 1(b) of the Rules Governing § 2254 Cases permits the application of these rules to habeas corpus petitions proceeding under § 2241.

In this case, Petitioner challenges an unspecified prison disciplinary hearing. Petitioner contends that the Disciplinary Hearing Officer ("DHO") was not an employee of the Bureau of Prisons ("BOP") as required by regulation and therefore lacked the authority to sanction Petitioner. He further argues that the DHO was not an impartial decision maker in violation of regulation. Rule 2(c)(2) requires that the petition "state the facts supporting each ground." The instant petition fails to do so. The petition sets forth the claims for relief but provides no facts in support thereof. Other than the identity of the DHO, the petition provides no details with respect to the disciplinary hearing, such as the time and place of the hearing, and the facts underlying the disciplinary proceeding. Further, Petitioner provides no information concerning his attempts, if any, to seek administrative relief.

Accordingly, the petition will be dismissed. Petitioner will be granted the opportunity to file a first amended petition to set forth the facts in support of his claims for relief. Petitioner is advised that he must reference the instant case number and designate his petition as a "First Amended Petition." Petitioner is forewarned that failure to comply with this order will result in a recommendation that the petition be dismissed and the action be terminated.

ORDER

Accordingly, IT IS HEREBY ORDERED:

1) The petition for writ of habeas corpus is DISMISSED with leave to amend;



2) Petitioner is GRANTED thirty (30) days from the date of service of this order to file a first amended petition; and



3) The Clerk of Court is DIRECTED to send Petitioner blank forms for filing a habeas action.
IT IS SO ORDERED.

Dated: December 11, 2013

/s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE


Summaries of

Quintero-Mendoza v. Benov

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Dec 11, 2013
1:13-cv-01885 AWI GSA HC (E.D. Cal. Dec. 11, 2013)
Case details for

Quintero-Mendoza v. Benov

Case Details

Full title:SALVADORE QUINTERO-MENDOZA, Petitioner, v. MICHAEL L. BENOV, Warden…

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Dec 11, 2013

Citations

1:13-cv-01885 AWI GSA HC (E.D. Cal. Dec. 11, 2013)