(HC) Afzal v. Kay ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MUHAMMAD TAHSEEN AFZAL, No. 2:20-cv-1614 AC P 12 Petitioner, 13 v. ORDER 14 WENDY KAY, 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. § 2254, together with a request to proceed in forma pauperis. 19 I. Application to Proceed In Forma Pauperis 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford 21 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 22 28 U.S.C. § 1915(a). 23 II. Petition 24 The petition appears to challenge a 2013 conviction for criminal threat, assault with force 25 likely to produce great bodily injury, and great bodily injury involving domestic violence on four 26 grounds. ECF No. 1 at 1, 5-10. However, the handwriting throughout the petition is extremely 27 difficult to read and is illegible in many places, particularly the supporting fact sections. Id. at 5- 28 10. In places where the petition is legible, the substantive arguments are difficult to understand. 1 Id. As best as the court can make out, Ground One is identified as a civil rights violation based 2 on a misunderstanding of culture; Ground Two asserts a violation of petitioner’s free speech and 3 religion, that his public defender was prejudiced against him because of his religion, and possibly 4 that petitioner was not allowed to act as a witness or counsel did not call any witnesses on his 5 behalf; Ground Three states that the police did not follow evidentiary rules related to recording 6 and investigating the charges; and Ground Four seems to allege a violation of the right to confront 7 witnesses, but the specifics of the claim are unclear. Id. Given this limited understanding of the 8 petition, the court is unable to determine whether petitioner has stated any cognizable grounds for 9 relief. Because it is unclear whether petitioner has stated any cognizable claims, the petition will 10 not be served, and petitioner will be required to file an amended petition. Failure to do so will 11 result in a recommendation that the petition be dismissed. 12 The court further notes that, based on petitioner’s responses to questions related to 13 whether his claims have been raised in state court, it appears that the petition is at least partially, 14 if not entirely, unexhausted. Id. at 6-12. The exhaustion of state court remedies is a prerequisite 15 to the granting of a petition for writ of habeas corpus unless “there is an absence of available 16 State corrective process” or circumstances make the process ineffective to protect a petitioner’s 17 rights. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by 18 respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied 19 or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court 20 with a full and fair opportunity to consider all claims before presenting them to the federal court. 21 Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 22 1985). Therefore, if petitioner chooses to amend the petition, he must also clearly identify which 23 claims, if any, have been exhausted by presenting them to the California Supreme Court. 24 Petitioner is advised that if he does have any unexhausted claims he does not require and should 25 not wait for an order from this court to exhaust his claims in state court and he should pursue 26 them in state court without delay. 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 28 § 2254(b)(2). 1 II. Plain Language Summary of this Order for a Pro Se Litigant 2 Your petition needs to be amended because the court is unable to read most of what you 3 || have written. Also, in places where the court is able to read what you have written, it is unable to 4 || understand the thoughts that you are trying to express. If you decide to amend your petition, 5 || these basic problems must be fixed. Additionally, you will need to clearly state which, if any, of 6 || your claims have been raised in the California Supreme Court. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motion to proceed in forma pauperis, ECF No. 7, is GRANTED. 9 2. For the reasons set forth above, the application for writ of habeas corpus will not be 10 || served. 11 3. Within thirty days from the date of this order, petitioner may file an amended petition 12 | for writ of habeas corpus. 13 4. Any amended petition must bear the case number assigned to this action and the title 14 || “Amended Petition.” 15 5. The Clerk of the Court is directed to send petitioner the court’s form for application 16 | for writ of habeas corpus. 17 || DATED: February 19, 2021 Af 18 ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28