Opinion
No. CIV S-07-0028 FCD DAD P.
October 12, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
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).
It appears from petitioner's petition that he is challenging his 1996 nolo contendere plea in the Sacramento Superior Court and the judgment of conviction entered pursuant thereto. However, petitioner has not clearly stated his federal constitutional claims nor has he clarified whether those claims have been presented to the California Supreme Court. Therefore, the court will order petitioner to file an amended petition and to complete each question on the form federal habeas petition. Petitioner is also advised that this habeas action must challenge his conviction or plea on federal constitutional grounds. This federal habeas action cannot be based on alleged violation of state law or the California Constitution.
Petitioner has also filed several letters and documents which are described by petitioner as motions. To the extent that petitioner is attempting to present additional arguments in support of his claims, those arguments should be included in petitioner's amended petition. The court also notes that petitioner continues to rely on state law in support of his arguments. As indicated above, state law does not provide a basis for federal habeas relief. The court will place petitioner's letters and motions in the file and they will be disregarded.
Petitioner is also informed that the court cannot refer to a prior pleading in order to make petitioner's amended petition complete. Local Rule 15-220 requires that an amended petition be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended petition supersedes the original petition. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once petitioner files an amended petition, the original pleading no longer serves any function in the case. Therefore, in an amended petition, as in an original petition, each claim and the supporting facts must be sufficiently alleged.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's January 5, 2007 request for leave to proceed in forma pauperis is granted;
2. Petitioner's petition is dismissed;
3. Petitioner is granted thirty days from the date of service of this order to file an amended petition that complies with the requirements set forth above; petitioner shall use the form petition provided by the court; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;" petitioner must file an original and one copy of the amended petition; and petitioner's failure to file an amended petition in accordance with this order will result in the dismissal of this action;
4. Petitioner's letters, documents, and motions filed on January 22, 2007; January 26, 2007; April 23, 2007; June 11, 2007; July 5, 2007 and July 9, 2007 shall be placed in the file and disregarded; and
5. The Clerk of the Court is directed to provide petitioner with the court's form petition for a writ of habeas corpus by a state prisoner.