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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Petitioner,

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v.

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Case No. CV 16-6935 FMO (AFM)

MICHAEL A. RIVERA,

LOS ANGELES COUNTY SUPERIOR
COURT, et al.,

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ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

Respondents.

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Petitioner, a state prisoner currently incarcerated at the North Kern State

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Prison

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Review/Overrule” on September 15, 2016. It appears that petitioner is trying to file

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a Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C.

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§ 2254).

in

Delano,

California,

filed

a

document

entitled

“Petition

for

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The Court’s review of petitioner’s filing reveals the following deficiencies.

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First, Local Civil Rule 83-16.1 provides, “A petition for writ of habeas

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corpus or a motion filed pursuant to 28 U.S.C. § 2255 shall be submitted on the

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forms approved and supplied by the Court.” Petitioner did not use the correct form

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required in the Central District of California for state prisoners.

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Second, petitioner failed to name the proper respondent, which would be his

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immediate custodian (i.e., the prison warden at the state prison where petitioner is

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incarcerated). See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2717-18 (2004). A habeas

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petitioner’s failure to name the correct respondent destroys personal jurisdiction.

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See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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Third, under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he

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is contending that he is in custody in violation of the Constitution or laws or treaties

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of the United States. The crux of petitioner’s pleading is that he did not receive the

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sentencing credits to which he was entitled under California law. Petitioner’s claim

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involves only a matter of state law, which is not cognizable on federal habeas

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review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus

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relief does not lie for errors of state law.”); see also Peltier v. Wright, 15 F.3d 860,

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861-62 (9th Cir. 1994) (habeas petitioner’s claim of entitlement to credit toward his

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sentence for 60 days spent in jail was not cognizable on federal habeas review).

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Accordingly, if petitioner still desires to pursue this action, he is ORDERED

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to file an amended petition on the standard form within thirty (30) days of the date

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of this Order. The clerk is directed to send petitioner a blank Central District

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§ 2254 habeas petition form for this purpose.

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The amended petition should reflect the same case number, be clearly labeled

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“First Amended Petition,” and be filled out completely. Petitioner is also advised

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that he should specify whether he has exhausted his state court remedies for each

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claim.

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Petitioner is cautioned that his failure to timely file a First Amended

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Petition in compliance with this Order will result in a recommendation that

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the action be dismissed with prejudice for failure to diligently prosecute.

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///

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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.

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DATED: 9/21/2016

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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Attachments: CV-69, CV-09

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