(HC) Wagner v. Sweet ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE WAGNER, No. 2:21-cv-01689 GGH P 12 Petitioner, 13 v. ORDER 14 JUDGE, 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. 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 the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 26 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, 27 the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the 28 //// 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 The pending habeas petition seeks to challenge a 1996 conviction from Sacramento 4 County Superior Court for robbery and murder. ECF No. 1 at 2. In addition, it appears that 5 petitioner may be seeking to bring a civil rights action pursuant to 42 U.S.C. § 1983. Id. at 4. 6 Petitioner has also submitted supplemental documentation which also includes additional claims 7 for relief. See ECF No. 4. In its current form, the petition fails to comply with Rule 2(c), Rules 8 Governing Section 2254 Cases. First, it is unclear whether petitioner has properly brought a 9 habeas action. If petitioner seeks to challenge his conditions of confinement, he must do so by 10 filing a separate civils rights action pursuant 42 U.S.C. § 1983. Secondly, petitioner has neither 11 clearly identified each of the claims he is seeking to raise in a single petition, nor addressed 12 whether each claim has been fully exhausted. Lastly, petitioner has named “Judge” as the 13 respondent. “A petitioner for habeas corpus relief must name the state officer having custody of 14 him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 15 360 (9th Cir.1994) (citing Rule 2(a), 28 U.S.C. § 2254). For these reasons, petitioner’s habeas 16 petition will be dismissed with leave to amend. Rule 4, Rules Governing Section 2254 Cases. In 17 the amended petition, petitioner must set forth which conviction he is seeking to challenge, state 18 each claim for relief and summarize the facts he alleges support each of the identified claims. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in 21 support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s 22 failure to comply with this order will result in a recommendation that this action be dismissed; 23 2. Petitioner’s petition for writ of habeas corpus is dismissed with leave to amend within 24 thirty days from the date of this order;1 25 3. Any amended petition must bear the case number assigned to this action and the title 26 “First Amended Petition”; and 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. 1 4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis 2 form used by this district and the court’s form application for writ of habeas corpus. 3 Dated: November 23, 2021 /s/ Gregory G. Hollows 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28