Gates v. Neuschnid ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 FREDERICK RENEE GATES, Case No. 19-cv-07780-RMI 9 Plaintiff, ORDER DISMISSING PETITION 10 v. WITH LEAVE TO AMEND 11 ROBERT NEUSCHNID, 12 Defendant. 13 14 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 15 to 28 U.S.C. § 2254. Petitioner was convicted in San Mateo County, which is in this district, so 16 venue is proper here. See 28 U.S.C. § 2241(d). Petitioner paid the filing fee and consented to the 17 jurisdiction of a Magistrate Judge (see dkts. 1, 2). 18 The court received two petitions. The first (dkt. 1) was sent from outside of prison, and the 19 second (dkt. 3) was sent from the prison where petitioner is incarcerated. While the petitions 20 contain overlapping claims, there are several differences.1 Out of an abundance of caution, the 21 petitions are dismissed with leave to amend. Petitioner should file an amended petition which sets 22 forth each claim on which he wishes to proceed, and which describes the specifics of each claim. 23 Petitioner is reminded that the court can only review claims and sub-claims that have been fully 24 exhausted in state court. 25 26 1 For example, the first petition contains an as-applied and a facial challenge to a California law. First Pet. (dkt. 1) at 5. However, the second petition only contains a facial challenge to the law. 27 See Second Pet. (dkt. 3) at 5. It is not clear what claim or claims have been exhausted. In addition, 1 For the foregoing reasons, the petitions are DISMISSED with leave to amend. The 2 amended petition must be filed within twenty-eight days of service of this order, and carry the 3 words AMENDED PETITION on the first page. Failure to amend within the designated time will 4 || result in the dismissal of the action. 5 Petitioner must keep the court informed of any change of address and must comply with 6 || the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for 7 || failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 8 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 9 IT IS SO ORDERED. 10 || Dated: February 5, 2020 11 12 ROBERT M. ILLMAN 13 United States Magistrate Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28