(HC) Simmons v. People of the State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN SIMMONS, No. 2:21-cv-01033 GGH P 12 Petitioner, 13 v. ORDER 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or 20 paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be 21 provided the opportunity to either submit the appropriate affidavit in support of a request to 22 proceed in forma pauperis or submit the appropriate filing fee. 23 Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall 24 specify all the grounds for relief which are available to the petitioner and of which he has or by 25 the exercise of reasonable diligence should have knowledge and shall set forth in summary form 26 the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 27 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, 28 the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the 1 petition is expected to state facts that point to a real possibility of constitutional error.” Advisory 2 Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977). 3 In his habeas petition, petitioner requests to have his state court action removed to this 4 court pursuant to 28 U.S.C. § 1446. ECF No. 1 at 1. Petitioner does not state any grounds for 5 relief. It is unclear whether petitioner seeks to bring a civil action, challenge an ongoing criminal 6 proceeding from Lassen County Superior Court, or challenge a previous conviction from the Los 7 Angeles Superior Court. Petitioner includes exhibits of state court orders from the Lassen County 8 Superior Court concerning an ongoing criminal proceeding as well as the abstract from a separate 9 conviction from the Los Angeles Superior Court. Id. at 4-13; 14-17. 10 A writ of habeas corpus is available under 28 U.S.C.§ 2254(a) only on the basis of some 11 transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085 12 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). “In conducting habeas 13 review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, 14 or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Based on 15 petitioner’s bare allegations, the court cannot determine whether petitioner has properly brought a 16 habeas action. Petitioner will be afforded an opportunity file an amended petition in order to 17 correct these discrepancies and provide the court with more information on the specific 18 allegations and which conviction, if any, he is seeking to challenge. 19 In its current form, the petition fails to comply with Rule 2(c), Rules Governing Section 20 2254 Cases. Therefore, the petition is dismissed with leave to amend. Rule 4, Rules Governing 21 Section 2254 Cases. In the amended petition, petitioner must set forth which conviction he is 22 seeking to challenge, state each claim for relief and summarize the facts he alleges support each 23 of the identified claims. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in 26 support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s 27 failure to comply with this order will result in a recommendation that this action be dismissed; 28 //// 1 2. Petitioner’s petition for writ of habeas corpus is dismissed with leave to amend within 2 thirty days from the date of this order;1 3 3. Any amended petition must bear the case number assigned to this action and the title 4 “First Amended Petition”; and 5 4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis 6 form used by this district and the court’s form application for writ of habeas corpus. 7 Dated: July 21, 2021 /s/ Gregory G. Hollows 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 By setting this deadline the court is making no finding or representation that the petition 28 is not subject to dismissal as untimely.