Donnie Kay Sneed v. S Peery

Filing 6

ORDER SUMMARILY DISMISSING HABEAS PETITION FOR FAILURE TO COMPLY WITH FEDERAL RULES by Judge George H. Wu. **See Order for details.** Case Terminated. Made JS-6. (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DONNIE KAY SNEED,

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Petitioner,
v.
S. PEERY, Warden,
Respondent.

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No. CV 15-1312-GW (PLA)
ORDER SUMMARILY DISMISSING
HABEAS PETITION FOR FAILURE TO
COMPLY WITH FEDERAL RULES

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I.

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BACKGROUND

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Petitioner has a habeas petition pending in this Court, case number CV 14-8386-GW (PLA)

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(“CV 14-8386”), challenging his February 23, 2011, conviction in the Los Angeles County Superior

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Court in case number B314300. (CV 14-8386, Pet. at 2). On February 4, 2015, in CV 14-8386,

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the Magistrate Judge granted petitioner’s request for a stay while he exhausts Grounds Two

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through Four of that petition in the California Supreme Court. (CV 14-8386, Dkt. No. 19).

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On February 24, 2015, petitioner filed another Petition for Writ of Habeas Corpus by a

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Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), which was given a

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new case number -- CV 15-1312-GW (PLA) (“CV 15-1312”). The Petition also challenges

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petitioner’s February 23, 2011, conviction in the Los Angeles County Superior Court in case

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number B314300. (Pet. at 2). The Petition, however, does not state any grounds for relief. (See

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generally Pet. at 5-7). Petitioner also attached two documents to the Petition without explanation:

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(1) his Petition for Review to the California Supreme Court, case number S210879, challenging

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the California Court of Appeal’s unpublished decision affirming his 2011 conviction; and (2)

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“Exhibit ‘A,’” the California Court of Appeal’s April 15, 2013, unpublished decision affirming his

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conviction. (Pet. Attach.).

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On February 26, 2015, the Magistrate Judge ordered petitioner to file a status report in this

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action, informing the Court whether (a) case number CV 15-1312 was intended to be a new

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habeas petition; (b) petitioner was attempting to amend the petition in case number CV 14-8386;

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or (c) petitioner was attempting to file additional documents in support of his pending petition in

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case number CV 14-8386. (Dkt. No. 4).

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On March 18, 2015, petitioner submitted a Status Report in which he stated that his intent

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in case number CV 15-1312 was to file a new habeas petition “for the first time from his Direct

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Appeal in Case #BA314300.” (Status Report (Dkt. No. 5) at 1). He also stated that he intended,

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but failed, to include in the Petition a claim of ineffective assistance of appellate counsel for

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raising only “minor” issues on appeal, i.e., failure of the trial court to re-advise petitioner of the

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dangers of self-representation, and an instructional error claim. (Status Report at 2). Ineffective

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assistance of appellate counsel is not one of the claims brought by petitioner in case number CV

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14-8386.1 Petitioner also notes that he filed case number CV 15-1312 in order “to preserve [the]

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(1) year tolling that around March 25, 2015 deadline only [sic].” (Id.). The Court construes this

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to mean that petitioner believes that the one-year AEDPA statute of limitations on any claims

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relating to his 2011 conviction expires on March 25, 2015. Finally, petitioner stated that the

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exhibits attached to the Petition were “a mistake” and that he will be sending the right information.

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In case number CV 14-8386, petitioner raised the following claims: (1) the trial court
negligently failed to admonish petitioner regarding the risks of self-representation (“Ground One”);
(2) the trial court was biased against petitioner (“Ground Two”); (3) the trial judge failed to provide
petitioner with effective assistance of counsel (“Ground Three”); and (4) petitioner was denied
discovery (“Ground Four”). (CV 14-8386, Pet. at 5-6).
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(Id.). There is no indication whether petitioner’s ineffective assistance of appellate counsel claim

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has been exhausted in the state courts.

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II.

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DISCUSSION

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Rule 2(c) of the Rules Governing Habeas Corpus Cases provides that a federal habeas

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petition must specify all the grounds for relief as well as the facts supporting each ground. See

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Rule 2(c) (emphasis added). Here, the spaces on the form Petition for petitioner to state his

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grounds for relief, their supporting facts, and whether he has raised those grounds in the state

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court of appeal and supreme court, are entirely blank. (See generally Pet. at 5-7). The Petition,

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therefore, fails to comply with Rule 2(c) and, in its present format, does not provide either a clear

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legal basis for habeas relief or specific supporting facts for any claim. For the same reason, the

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Petition fails to comply with Rules 8(a) and 8(d)(1) of the Federal Rules of Civil Procedure,

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requiring a “short and plain statement of the claim showing that the pleader is entitled to relief,”

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and containing allegations that are simple, concise, and direct. In short, the Petition fails to set

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forth any cognizable claim for habeas relief. Where, as here, a petitioner fails to clearly set forth

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allegations sufficient to provide any respondent with fair notice of the petitioner’s claims, the

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petition fails to comply with Rule 8 and is subject to dismissal. See, e.g., McHenry v. Renne, 84

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F.3d 1172, 1177-79 (9th Cir. 1996).

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Additionally, based on the information in the Status Report provided by petitioner, the Court

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concludes that even if the Petition had been properly completed, because it purports to challenge

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the same conviction petitioner is already challenging in CV 14-8386, the claim may not be brought

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in a new petition under a new case number. See White v. Lamarque, 2002 WL 1941152, at *1

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(N.D. Cal. Aug. 12, 2002) (“All claims pertaining to the same state conviction should be included

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in a single petition for a writ of habeas corpus under 28 USC § 2254.”). However, rather than

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moving the Court for leave to amend the petition in CV 14-8386 to add an additional claim of

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ineffective assistance of appellate counsel,2 petitioner improperly filed a completely new Petition

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challenging the same conviction.

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Finally, by completely failing to fill out pages five through seven of the form Petition,

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petitioner failed to demonstrate that he has exhausted the claim(s) he seeks to bring. As a matter

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of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has

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exhausted the available state judicial remedies on every ground presented in the petition. Rose

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v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).

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III.

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ORDER

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Based on the foregoing deficiencies, the Petition is dismissed without prejudice.

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DATED: March 26, 2015

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________________________________
HONORABLE GEORGE H. W U
UNITED STATES DISTRICT JUDGE

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Even if petitioner moves to amend the petition in CV 14-8386, he would have to show,
among other things, that the claim is exhausted and timely.
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