1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST ROGER FOUNTAIN, JR., No. 1:22-cv-01231-HBK (HC) 12 Petitioner, ORDER DISMISSING PETITION 13 v. (Doc. No. 1) 14 DIRECTOR, ORDER GRANTING LEAVE TO FILE A FIRST AMENDED PETITION 15 Respondent. THIRTY DAY DEADLINE 16 17 18 On September 27, 2022, Petitioner filed a petition for writ of habeas corpus under 28 19 U.S.C. § 2254. (Doc. No. 1). A preliminary screening of the petition reveals that it fails to 20 comply with Rule 2(c) of the Rules Governing Section 2254 Cases. Therefore, the Court will 21 dismiss the Petition without prejudice to Petitioner filing a First Amended Petition. 22 DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 26 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 27 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 28 1 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 2 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not 4 be dismissed without leave to amend unless it appears that no tenable claim for relief can be 5 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 6 B. Improper Respondent 7 In this case, Petitioner names “Director” as Respondent. A petitioner seeking habeas 8 corpus relief must name the officer having custody of him as the respondent to the petition. Rule 9 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 10 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the 11 person having custody of an incarcerated petitioner is the warden of the prison in which the 12 petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. 13 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. 14 However, the chief officer in charge of penal institutions is also appropriate. Ortiz, 81 F.3d at 15 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent 16 is his probation or parole officer and the official in charge of the parole or probation agency or 17 correctional agency. Id. 18 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 19 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 20 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 21 Cir. 1976). The Court will afford Petitioner an opportunity to cure this defect by amending the 22 petition to name the proper respondent, such as the warden of his facility. See West v. Louisiana, 23 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 24 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. 25 State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). Petitioner may correct this deficiency 26 in his First Amended Petition. 27 C. Failure to State a Cognizable Federal Claim 28 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 1 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 2 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 3 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 4 that custody . . ..” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 5 In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases requires 6 that the petition: 7 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 8 (3) State the relief requested; 9 (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 10 it for the petitioner under 28 U.S.C. § 2242. 11 Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the petitioner’s 12 commitment or detention. 13 To the extent discernable, the Petition asserts multiple grounds for relief, including: (1) 14 the “court did not establish its jurisdiction”; (2) deprivation of due process of law because the 15 court “is no longer a constitutional court”; (3) “impermissible application of a statute” because it 16 was not established that Petitioner was “a party to the Constitution of the State of California”; (4) 17 misrepresentation because the court did not “establish” Petitioner’s legal name; and (5) violation 18 of double jeopardy because the court imposed a prison term and a monetary penalty. (Doc. No. 1 19 at 5-16). 20 A petition for writ of habeas corpus must specify the grounds for relief as well as the facts 21 supporting each ground. Rule 2(c) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 22 2254. Petitioner must make specific factual allegations which, if true, would entitle him to 23 habeas corpus relief. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). Each ground 24 for relief must be clearly stated and allege what federal constitutional violation has occurred, 25 along with providing facts that support the grounds for relief. Here, Petitioner fails to state with 26 specificity any facts in support of the conclusory violations asserted in his Petition. Because 27 Petitioner fails to specify the facts supporting his ground(s) as required under Rule 2(c), the First 28 Amended Petition fails to state a cognizable federal habeas claim and must be dismissed. 1 Petitioner will be granted the opportunity to file a First Amended Petition curing these 2 | deficiencies. Should Petitioner file a First Amended Petition, he is also advised that it will 3 | supersede the first amended petition and become the operative pleading. See Lacey v. Maricopa 4 | County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc). The First Amended Petition must be 5 | free-standing, i.e. it must be complete without reference to the prior petition or any superseded 6 | pleading, and must include all grounds for relief and supporting facts. See also Local Rule 220. 7 | The Court does not accept piecemeal pleadings. 8 The Court will also direct the Clerk of Court to provide Petitioner with a blank form 9 | petition. Petitioner should use the enclosed form and title the pleading “First Amended Petition.” 10 | Petitioner is forewarned that his failure to comply with this order will result in a recommendation 11 | that the petition be dismissed pursuant to Local Rule 110. 12 Accordingly, IT IS ORDERED: 13 1. The Petition (Doc. No. 1) is DISMISSED without prejudice; 14 2. Within thirty days (30) from the date of service of this Order, Petitioner shall file a First 15 Amended Petition that complies with this order. 16 3. The Clerk of Court shall provide Petitioner with a habeas corpus § 2254 form with this 17 Order for Petitioner’s use in preparing his First Amended Petition 18 4. If Petitioner fails to timely file a First Amended Petition the undersigned will recommend 19 the Court dismiss the petition for the reasons set forth above and/or for Petitioner’s failure 20 to prosecute this action. 21 22 Dated: _ December 6, 2022 law ZA. foareh Back 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28