(HC) McGraw v. Cisneros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WAYNE MCGRAW, Case No. 2:23-cv-01264-JDP (HC) 12 Petitioner, 13 v. ORDER 14 CISNEROS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 18 under 28 U.S.C. § 2254. After reviewing the petition, I find that it fails to state a cognizable 19 claim. I will give petitioner leave to amend. I will also grant his petition to proceed in forma 20 pauperis. ECF No. 6. 21 The petition is before me for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 23 the habeas petition and order a response unless it “plainly appears” that the petitioner is not 24 entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 25 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 Petitioner’s claim (or claims) is difficult to grasp. He has not used a federal habeas form, 27 and the various exhibits attached to his petition do not plainly articulate the grounds for 28 challenging his conviction. Even if this deficiency were cured, however, habeas relief appears 1 | foreclosed. Petitioner writes that he is serving his current sentence because he pled guilty to a 2 | double murder more than thirty years ago, in 1992. ECF No. 1 at 20; ECF No. 5 at 26. Any 3 | habeas petition challenging a conviction that was finalized before the enactment of the Anti- 4 | Terrorism and Effective Death Penalty Act must have been filed by April 23, 1997. See Calderon 5 || v. United States Dist. Court, 128 F.3d 1283, 1287 (9th Cir. 1997). This action was filed in June 6 | of this year and, thus, appears time-barred. 7 I will give petitioner one opportunity to file an amended petition that explains why he 8 | should still be allowed to proceed. 9 It is ORDERED that: 10 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is GRANTED. 11 2. The Clerk of Court is directed to send petitioner a federal § 2254 habeas form. 12 3. Within thirty days of this order’s entry, petitioner may file an amended habeas 13 | petition. If he does not, I will recommend this action be dismissed. 14 1s IT IS SO ORDERED. 16 | q Sty — Dated: _ October 7, 2023 q——— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28