(HC) Alboran v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN ADAME ALBORAN, No. 1:22-cv-01225-HBK (HC) 12 Petitioner, ORDER DISMISSING PETITION WITH LEAVE TO FILE AN AMENDED PETITION 13 v. THIRTY DAY DEADLINE 14 WARDEN, FCI MENDOTA, 15 Respondent. 16 17 Petitioner, a federal prisoner incarcerated at FCI, Mendota, filed a petition for writ of 18 habeas corpus under 28 U.S.C. § 2241 on September 26, 2022 . (Doc. No. 1). A preliminary 19 screening of the petition reveals that it should be dismissed for failure to state a claim. The Court 20 will afford Petitioner an opportunity to file an amended petition to cure the deficiencies. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing § 2254 Cases1 requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 1 The Rules Governing Section 2254 Cases may be applied to petitions for writ of habeas corpus other than 26 those brought under § 2254 at the Court’s discretion. See Rule 1 of the Rules Governing Section 2254 Cases. Civil Rule 81(a)(2) provides that the rules are “applicable to proceedings for . . . habeas corpus . . . 27 to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice of civil actions.” Fed. R. Civ. P 81(a)(2). 28 1 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 2 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 3 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 4 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 5 dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not 6 be dismissed without leave to amend unless it appears that no tenable claim for relief can be 7 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 8 B. Failure to State a Cognizable Federal Claim 9 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 10 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 11 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 12 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 13 that custody . . ..” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 14 In addition to the above, Rule 2(c) requires that the petition: 15 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 16 (3) State the relief requested; 17 (4) Be printed, typewritten, or legibly handwritten; and (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign 18 it for the petitioner under 28 U.S.C. § 2242. 19 Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the petitioner’s 20 commitment or detention. 21 Initially, the Court notes the Petition is not on the approved form. Therefore, it lacks 22 critical information. Rule 2(d) requires that a petition “substantially follow either the form 23 appended to [the] rules or a form prescribed by a local district-court rule.” The Court finds the 24 use of the approved form to be more efficient. 25 To the extent discernable, Petitioner asserts that he is actually innocent of the conviction 26 entered by the United States District Court in the Sothern District of Texas for violating § 1326(a) 27 and (b). (See generally Doc. No. 1 at 1-2). However, the Petition is deficient in facts concerning 28 his conviction, the sentence he received, or when he expects to be released. (See id. at 1 (noting 1 only that the “Southern District of Texas McAllen 5th Cir. imposed the sentence for the offense § 2 | 1326 unlawfully entered, attempted to enter, and/or found in the United States.”)). Moreover, the 3 | Petition provides no information about aby prior relief he has sought, such as any appeals he has 4 | filed or any motions or petitions for collateral relief, whether in the court of conviction or court of 5 | custody. Without this information, the Court cannot determine whether it has jurisdiction, under 6 | which code section it has jurisdiction, whether the petition states a cognizable claim; or whether 7 | Petitioner satisfies the savings clause as set forth in 28 U.S.C. § 2255. 8 Petitioner will be granted an opportunity to file a First Amended Petition curing these 9 | deficiencies if he is able. The Court recommends use the approved form for this purpose. 10 | Petitioner is advised that he should caption his pleading, “First Amended Petition” and should 11 | include the instant case number. Failure to comply with this order will result in dismissal of the 12 | action. 13 ACCORDINGLY, it is ORDERED: 14 1. The Petition (Doc. No. 1) is DISMISSED with leave to amend. 15 2. Petitioner is GRANTED thirty days (30) from the date of service of this Order in which 16 to file a First Amended Petition. 17 3. The Clerk of Court shall provide Petitioner with a habeas corpus § 2241 form with this 18 Order for Petitioner’s use in preparing his First Amended Petition. 19 4. If Petitioner fails to timely file a First Amended Petition the undersigned will recommend 20 the Court dismiss the petition for the reasons set forth here and/or for Petitioner’s failure 21 to prosecute this action. 22 23 Dated: _ October 25, 2022 oe Zh. Sareh Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28