(HC) Garcia v. Montgomery ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY GARCIA, Case No. 1:23-cv-00082-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS WITHOUT PREJUDICE 14 W.L. MONTGOMERY, ORDER DIRECTING CLERK OF COURT 15 Respondent. TO ASSIGN DISTRICT JUDGE 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On January 19, 2023, Petitioner filed the instant petition for writ of habeas corpus, 22 challenging his 2022 King County Superior Court convictions. In his sole claim for relief, 23 Petitioner asserts that the trial court erred in failing to issue an unanimity instruction. (ECF No. 1 24 at 5.) On January 25, 2023, the Court found that the petition did not comply with Rule 2(c) of the 25 Rules Governing Section 2254 Cases, which states that a petition must “(1) specify all the 26 grounds for relief available to the petitioner; [and] (2) state the facts supporting each ground.” 27 Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. (ECF No. 5.) The Court granted Petitioner thirty days to file an amended petition. 1 (ECF No. 5 at 2.) To date, Petitioner has not filed an amended petition, and the time for doing so 2 has passed. 3 II. 4 DISCUSSION 5 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 6 of a habeas petition and allow a district court to dismiss a petition before the respondent is 7 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 8 the petitioner is not entitled to relief in the district court.” Habeas Rule 4. 9 Habeas Rule 2(c) states that a petition must “(1) specify all the grounds for relief 10 available to the petitioner; [and] (2) state the facts supporting each ground.” Petitioner must state 11 his claims with sufficient specificity. See McFarland v. Scott, 512 U.S. 849, 856 (1994); 12 Hendricks v. Vasquez, 908 F.2d 490, 491–92 (9th Cir. 1990). “A prime purpose of Rule 2(c)’s 13 demand that habeas petitioners plead with particularity is to assist the district court in 14 determining whether the State should be ordered to ‘show cause why the writ should not be 15 granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. § 2243). 16 In his sole claim for relief, Petitioner asserts that the trial court erred in failing to issue an 17 unanimity instruction. (ECF No. 1 at 5.) Petitioner does not provide any supporting facts, but 18 merely states: “See Court of Appeal Opinion.” (Id.) In the memorandum of points and 19 authorities, Petitioner addresses in detail the timeliness of the petition. However, with respect to 20 his claim for relief, Petitioner merely states: “Although the proper area for arguments in the 21 Answer and Traverse petitioner wants to point out for the record that the Court of Appeal 22 Opinion is a misrepresentation of the facts on the record as a whole.”1 (ECF No. 1 at 11.) 23 As noted above, Habeas Rule 2(c) requires the petition to “state the facts supporting each 24 ground.” Here, however, Petitioner merely cites to the Court of Appeal opinion and states in a 25 conclusory manner that the Court of Appeal opinion misrepresents the facts. Petitioner does not 26 1 The Court notes that the petition and memorandum in support of the petition should include facts and arguments in 27 support of Petitioner’s claim. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in [a habeas] petitioner’s reply brief are deemed waived.”); Cacoperdo v. Demosthenes, 37 1 state in what way the Court of Appeal opinion is a misrepresentation of the facts or otherwise 2 provide any factual allegations to support his instructional error claim that would enable the 3 Court to determine whether Respondent “should be ordered to ‘show cause why the writ should 4 not be granted.’” Mayle, 545 U.S. at 656 (quoting 28 U.S.C. § 2243). 5 “It may be that [the petitioner’s] conclusory averments cannot be factually supported, but 6 a petition for writ of habeas corpus should not be dismissed without leave to amend unless it 7 appears that no tenable claim for relief can be pleaded were such leave granted.” Jarvis v. 8 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Here, however, the Court previously granted Petitioner 9 an opportunity to file an amended petition in order to state the facts supporting his claim for 10 relief, and Petitioner failed to file an amended petition. Accordingly, the Court recommends that 11 the petition be dismissed. 12 III. 13 RECOMMENDATION & ORDER 14 Based on the foregoing, the Court HEREBY RECOMMENDS that that the petition for 15 writ of habeas corpus be dismissed without prejudice. 16 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 17 the present matter. 18 This Findings and Recommendation is submitted to the assigned United States District 19 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 20 Rules of Practice for the United States District Court, Eastern District of California. Within 21 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 22 written objections with the court and serve a copy on all parties. Such a document should be 23 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 24 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 25 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 26 /// 27 /// 1 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 2 | 834, 839 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ April 6, 2023 ‘ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28