(HC)Oscar L Flores v. Neil McDawell ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 OSCAR L FLORES, ) Case No.: 1:21-cv-00054-JLT (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY-DAY DEADLINE] 14 NEIL MCDAWELL, ) 15 Respondent. ) ) 16 ) 17 Petitioner filed a Petition for Writ of Habeas Corpus on January 5, 2021 in the United States 18 District Court for the Central District of California. (Doc. 1.) The Central District transferred the 19 petition to this Court on January 14, 2021. (Doc. 5.) A preliminary screening of the petition reveals 20 that the petition fails to present any cognizable grounds for relief or any facts in support. Therefore, 21 the Court will DISMISS the petition with leave to file an amended petition. 22 I. DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 26 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 27 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 28 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 1 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 2 answer to the petition has been filed. 3 B. Failure to State a Cognizable Federal Claim 4 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: 5 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 6 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. 7 8 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 9 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 10 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 11 (1973). 12 To succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the 13 adjudication of his claim in state court 14 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 15 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 16 17 28 U.S.C. § 2254(d)(1), (2). In addition to the above, Rule 2(c) of the Rules Governing Section 2254 18 Cases requires that the petition: 19 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 20 (3) State the relief requested; (4) Be printed, typewritten, or legibly handwritten; and 21 (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242. 22 23 Petitioner has failed to comply with Rule 2(c) by failing to state the facts supporting his claims. 24 Rule 2(c) requires that each ground for relief be clearly stated, along with providing specific factual 25 allegations that support the grounds for relief. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 26 1990); United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). Additionally, Petitioner fails to 27 state how the adjudication of his claims in state court resulted in a decision that was contrary to, or an 28 unreasonable application of, clearly established Supreme Court authority. Therefore, the petition fails 1 to present a cognizable claim for relief and must be dismissed. 2 Petitioner will be granted an opportunity to file a First Amended Petition curing the foregoing 3 deficiencies. Petitioner is advised that he should entitle his pleading, “First Amended Petition,” and he 4 should reference the instant case number. Failure to comply with this order will result in dismissal of 5 the action. 6 II. ORDER 7 Accordingly, the Court ORDERS: 8 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 9 failure to state a claim; and 10 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 11 Amended Petition. 12 13 IT IS SO ORDERED. 14 Dated: January 30, 2021 /s/ Jennifer L. Thurston 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28