(HC) Ward v. Unknown ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH D. WARD, No. 2:23-cv-01212 DB P 12 Petitioner, 13 v. ORDER 14 UNKNOWN, 15 Respondent. 16 17 On June 20, 2023, petitioner, a state prisoner at CSP-Corcoran, filed what appears to be 18 the final pages to a habeas corpus petition on a California state court form. (ECF No. 1.) 19 Petitioner’s letter to the Clerk with the document states “I sent a habeas corpus form on 06/13/23” 20 but without “all the documents.” (ECF No. 1.) Petitioner states the instant filing is the “rest of the 21 habeas corpus form.” (Id.) However, no other filing has been received at this court from petitioner 22 that appears to correspond with this partial petition.1 23 In order to commence an action, petitioner must file a petition for writ of habeas corpus as 24 required by Rule 3 of the Rules Governing Section 2254 cases, and petitioner must either pay the 25 1 Petitioner already proceeds in this court in a habeas action titled Ward v. Peery, No. 2:21-cv- 26 2220 DAD KJN. The document received and filed in the instant new case does not appear to have 27 been intended for filing in Ward v. Peery, No. 2:21-cv-2220 DAD KJN. Instead, it appears petitioner may have intended to send this partial petition on a California state court form to one of 28 the California state courts. 1 | required filing fee or file an application requesting leave to proceed in forma pauperis. See 28 2 | US.C. §§ 1914(a), 1915(a). The court will not issue any orders granting or denying relief until an 3 | action is properly commenced. Therefore, unless petitioner files a full petition and submits an 4 | application requesting leave to proceed in forma pauperis or submits the appropriate filing fee, 5 || this action will be dismissed.” 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. To the extent it seeks any relief from this court, petitioner’s partial habeas corpus form 8 | filed on June 20, 2023, is denied without prejudice. 9 2. Within thirty days,’ if petitioner intended to commence a new action in this court, 10 || petitioner shall file a petition that complies with the requirements of the Rules Governing Section 11 2254 Cases, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the petition 12 | must bear the docket number assigned this case. Petitioner must file an original and two copies of 13 | the petition. Petitioner shall also submit, within thirty days from the date of this order, the 14 | application to proceed in forma pauperis on the form provided by the Clerk of Court, or the filing 15 | fee in the amount of $5.00. Failure to comply with this order will result in a recommendation that 16 | this matter be dismissed. 17 3. The Clerk of the Court is directed to send petitioner the court’s form for filing a 18 | petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner. 19 | Dated: June 28, 2023 20 DLB7 71 ward1212.nopetition ORAH BARNES UNITED STATES MAGISTRATE JUDGE 3 > If petitioner did not intend to commence this new action in this court and prefers to voluntarily dismiss the action, petitioner may file a notice of voluntary dismissal under Federal Rule of Civil 24 | Procedure 41(a)(1)(A), which allows voluntary dismissal of an action without a court order at any time before the opposing party appears in the case. 25 3 By setting this due date to file a full petition, the court makes no finding or representation that 26 | the petition is not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1231-35 (9th Cir. 2015). A one-year statute of limitations is applicable to all claims presented in a federal 27 || habeas corpus petition. See 28 U.S.C. § 2244(d)(1); see also Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012) (holding that the one-year statute of limitations applied to each claim in a habeas 28 | petition on an individual basis).