(HC) Sholl v. Atchley ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN SHOLL II, No. 2:21-cv-00064 GGH P 12 Petitioner, 13 v. ORDER 14 UNKNOWN,1 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. Petitioner has not, however, filed an in forma pauperis affidavit or 19 paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be 20 provided the opportunity to either submit the appropriate affidavit in support of a request to 21 proceed in forma pauperis or submit the appropriate filing fee. 22 Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall 23 specify all the grounds for relief which are available to the petitioner and of which he has or by 24 the exercise of reasonable diligence should have knowledge and shall set forth in summary form 25 26 1 "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 27 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). In the instant action, petitioner has not identified a respondent in the caption. Petitioner is cautioned that should he file an amended 28 habeas petition; petitioner must name the proper respondent. 1 the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 2 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, 3 the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the 4 petition is expected to state facts that point to a real possibility of constitutional error.” Advisory 5 Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977). 6 In the petition, petitioner alleges a single claim alleging the “trial court imposed an illegal 7 conviction against petitioner.” ECF No. 1 at 4. Petitioner provides an attachment for his 8 supporting facts for this claim. Id. However, review of the attachment lists multiple ineffective 9 assistance of counsel claims. Id. at 3. Petitioner provides no supporting facts for any of his claims, 10 nor is it clear from the petition whether each of his claims have been fully exhausted in state 11 court. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ 12 of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by 13 providing the highest state court with a full and fair opportunity to consider all claims before 14 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 15 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 16 The petition fails to comply with Rule 2(c), Rules Governing Section 2254 Cases. 17 Therefore, the petition is dismissed with leave to amend. Rule 4, Rules Governing Section 2254 18 Cases. In the amended petition, petitioner must set forth each claim for relief separately and 19 summarize the facts he alleges support each of the identified claims. Moreover, petitioner must 20 state whether each claim presented has been fully exhausted. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in 23 support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s 24 failure to comply with this order will result in the dismissal of this action; 25 2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend 26 within thirty days from the date of this order;2 27 2 By setting this deadline the court is making no finding or representation that the petition 28 is not subject to dismissal as untimely. 1 3. Any amended petition must bear the case number assigned to this action and the title 2 “Amended Petition”; and 3 4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis 4 form used by this district and the court’s form application for writ of habeas corpus. 5 Dated: February 11, 2021 /s/ Gregory G. Hollows 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28