Michael A. Rivera v. Inferior Court Los Angeles County et al

Filing 3

ORDER DISMISSING PETITIONER WITH LEAVE TO AMEND by Magistrate Judge Alexander F. MacKinnon. Re Petition for Writ of Habeas Corpus 1 . Amended Petition due within 30 days of the date of this Order. The clerk shall send petitioner a blank Center District 2254 habeas petition form and a Notice of Dismissal form. (See document for details). (Attachments: # 1 Form CV-69 Petn H/C, # 2 Form CV-09 Notc of Dismissal) (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Petitioner, 12 v. 13 14 Case No. CV 16-6935 FMO (AFM) MICHAEL A. RIVERA, LOS ANGELES COUNTY SUPERIOR COURT, et al., 15 ORDER DISMISSING PETITION WITH LEAVE TO AMEND Respondents. 16 17 18 Petitioner, a state prisoner currently incarcerated at the North Kern State 19 Prison 20 Review/Overrule” on September 15, 2016. It appears that petitioner is trying to file 21 a Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. 22 § 2254). in Delano, California, filed a document entitled “Petition for 23 The Court’s review of petitioner’s filing reveals the following deficiencies. 24 First, Local Civil Rule 83-16.1 provides, “A petition for writ of habeas 25 corpus or a motion filed pursuant to 28 U.S.C. § 2255 shall be submitted on the 26 forms approved and supplied by the Court.” Petitioner did not use the correct form 27 required in the Central District of California for state prisoners. 28 1 Second, petitioner failed to name the proper respondent, which would be his 2 immediate custodian (i.e., the prison warden at the state prison where petitioner is 3 incarcerated). See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2717-18 (2004). A habeas 4 petitioner’s failure to name the correct respondent destroys personal jurisdiction. 5 See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. 6 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 7 Third, under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he 8 is contending that he is in custody in violation of the Constitution or laws or treaties 9 of the United States. The crux of petitioner’s pleading is that he did not receive the 10 sentencing credits to which he was entitled under California law. Petitioner’s claim 11 involves only a matter of state law, which is not cognizable on federal habeas 12 review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus 13 relief does not lie for errors of state law.”); see also Peltier v. Wright, 15 F.3d 860, 14 861-62 (9th Cir. 1994) (habeas petitioner’s claim of entitlement to credit toward his 15 sentence for 60 days spent in jail was not cognizable on federal habeas review). 16 Accordingly, if petitioner still desires to pursue this action, he is ORDERED 17 to file an amended petition on the standard form within thirty (30) days of the date 18 of this Order. The clerk is directed to send petitioner a blank Central District 19 § 2254 habeas petition form for this purpose. 20 The amended petition should reflect the same case number, be clearly labeled 21 “First Amended Petition,” and be filled out completely. Petitioner is also advised 22 that he should specify whether he has exhausted his state court remedies for each 23 claim. 24 Petitioner is cautioned that his failure to timely file a First Amended 25 Petition in compliance with this Order will result in a recommendation that 26 the action be dismissed with prejudice for failure to diligently prosecute. 27 /// 28 /// 2 1 2 If petitioner no longer wishes to pursue this action, he may use the attached form Notice of Dismissal and voluntarily dismiss this action without prejudice. 3 4 DATED: 9/21/2016 5 6 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 Attachments: CV-69, CV-09 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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