(HC) Thao v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOU C. THAO, No. 2:20-cv-0049 JAM DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Plaintiff alleges he is serving an unauthorized sentence. 19 Presently before the court is petitioner’s motion to proceed in forma pauperis (ECF No. 2) and his 20 petition for screening (ECF No. 1). For the reasons set forth below the court will recommend that 21 the petition be dismissed. 22 IN FORMA PAUPERIS 23 Petitioner has filed a motion requesting to proceed in forma pauperis. (ECF No. 2.) 24 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 25 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 26 U.S.C. § 1915(a). 27 //// 28 //// 1 SCREENING 2 I. Legal Standards 3 The court is required to screen all actions brought by prisoners who seek any form of 4 relief, including habeas relief, from a governmental entity or officer or employee of a 5 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 6 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 7 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 8 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases. 10 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 11 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 12 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 13 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 14 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 15 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 16 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 17 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 18 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 19 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 20 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 21 se habeas petitioners may not be held to the same technical standards as litigants represented by 22 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 23 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 24 inferences in the petitioner’s favor.”). 25 Rule 2(c) of the Rules Governing § 2254 Cases requires every habeas petition to (1) 26 specify all the grounds for relief available to the petitioner; (2) state the facts supporting each 27 ground; and (3) state the relief requested. Although, as stated above, pro se petitions receive less 28 scrutiny for precision than those drafted by lawyers, a petitioner must give fair notice of his 1 claims by stating the factual and legal elements of each claim in a short, plain, and succinct 2 manner. See Mayle v. Felix, 545 U.S. 644, 648 (2005) (“In ordinary civil proceedings . . . Rule 8 3 of the Federal Rules of Civil Procedure requires only ‘a short and plain statement[.] . . . Rule 2(c) 4 of the Rules Governing Habeas Corpus Cases requires a more detailed statement.”). Allegations 5 in a petition that are vague, conclusory, or palpably incredible, and that are unsupported by a 6 statement of specific facts, are insufficient to warrant relief and are subject to summary dismissal. 7 Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James, 24 F.3d at 26. 8 II. Petition is Duplicative 9 Petitioner challenges his 2011 conviction for assault with a deadly weapon in Sacramento 10 Superior Court Case No. 10F06846. (ECF No. 1 at 1, 5, 7, 17.) A review of the court’s records1 11 indicates that petitioner has a pending case, Thao v. Sherman, No. 2:17-cv-2396 MCE AC P 12 (E.D. Cal.), challenging the same conviction. Petitioner alleges in both actions that he received 13 an unauthorized sentence. Because it appears that the instant petition challenges the same 14 conviction on the same basis as petitioner’s earlier filed case, the court will recommend that the 15 petition be dismissed as duplicative. 16 III. Conclusion 17 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma 18 pauperis (ECF No. 2) is granted. 19 IT IS HEREBY RECOMMENDED that the petition (ECF No. 1) be dismissed as 20 duplicative. 21 These findings and recommendations will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 23 being served with these findings and recommendations, petitioner may file written objections 24 with the court and serve a copy on all parties. The document should be captioned “Objections to 25 Magistrate Judge's Findings and Recommendations.” Petitioner is advised that failure to file 26 27 1 A court may take judicial notice of its own record and the records of other courts. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 28 118, 119 (9th Cir. 1980). MwA 2 OVE TAIN MEO OI OP EEN AY Tt 1 | objections within the specified time may result in waiver of the right to appeal the district court’s 2 | order. Martinez vy. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: August 10, 2020 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 DLB:12 13 || DLB:1/Orders/Prisoner/Civil.Rights/thao0049.scrn.fr 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28