Enoch Conners v. Warden

Filing 6

ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED by Magistrate Judge Alka Sagar. Petitioner is ORDERED TO SHOW CAUSE, within thirty (30) days of the date of this Order, or by no later than April 17, 2017 why this action should not be dismissed for his failure to comply with Court orders and/or for his failure to prosecute pursuant to Fed.R.Civ.P. 41(b). (See Order for complete details) (Attachments: # 1 Courts January 31, 2017 Order, # 2 Notice of Dismissal (Blank)) (afe)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
Title

Date

CV 17-00583-R (AS)

January 31, 2017

Enoch Conners v. Warden

Present: The
Honorable

Alka Sagar, United States Magistrate Judge
Alma Felix

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

N/A

N/A

Proceedings:

(IN CHAMBERS) ORDER REQUIRING THE FILING OF FIRST
AMENDED PETITION

This Court is in receipt of Petitioner’s undated letter, filed on January 24, 2017.
(Docket Entry No. 1). Petitioner, a California state prisoner, seeks to file a “Motion for
Time Credit” in order to receive credit for all of the time of his incarceration.
Petitioner’s pleading is deficient in the following respects: (1) It is not clear
whether Petitioner is attempting to file a Petition for Writ of Habeas Corpus by a Person
in State Custody (pursuant to 28 U.S.C. § 2254), or some other pleading (i.e., a civil
rights action pursuant to 42 U.S.C. § 1983); (2) Petitioner has failed to name the proper
Respondent (the name of the officer having custody over him); (3) Petitioner has failed to
plainly state “[t]he statutory or other basis for the exercise of jurisdiction by this Court,”
in violation of Central District Local Rule 8-1 and Fed.R.Civ.P. Rule 8(a); (4) Assuming
the pleading is a Petition for Writ of Habeas Corpus by a Person in State Custody,
Petitioner has failed to specify any understandable ground for relief and does not include
any supporting facts, in violation of Rule 2(c), Rules Governing Section 2254 Cases in
the United States District Courts; and (5) Petitioner has alleged vague and conclusory
“claims,” in violation of Fed.R.Civ.P. Rule 8(a) and 8(d).
To the extent that Petitioner has requested a “‘Fill in the blank’ Motion for Time
Credit Application/Petition,” it is not clear what application/petition Petitioner is
requesting.
Within twenty-one (21) days of the date of this Order (by no later than February
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CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-00583-R (AS)

Title

Date

January 31, 2016

Enoch Conners v. Warden

21, 2017), Petitioner is ORDERED to file a First Amended Petition for Writ of Habeas
Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“First Amended
Petition”), on the proper Central District Form (which the Clerk of the Court is directed
to provide to Petitioner). The First Amended Petition shall be complete in itself, must not
incorporate by reference any other pleading, and should set forth clearly each claim
which Petitioner intends to raise in this proceeding and the factual bases for each claim.
Petitioner is advised that his failure to comply with the above requirements may
result in a recommendation that this action be dismissed for failure to comply with the
Court’s Order and/or for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). See
Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002)(district court may dismiss habeas
petition for failure to obey court order or failure to prosecute).

0
Initials of Preparer

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CIVIL MINUTES - GENERAL

:

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NAME
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT

Note:

It is your responsibility to notify the Clerk of Court in writing of any
change of address. If represented by an attorney, provide his name,
address, telephone and facsimile numbers, and e-mail address.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER:

CV
To be supplied by the Clerk of the United States District Court
FULL NAME (Include name under which you were convicted )

Petitioner,
v.

G __________________ AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
28 U.S.C. § 2254

NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED
PERSON HAVING CUSTODY OF PETITIONER

Respondent.

PLACE/COUNTY OF CONVICTION
PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT
(List by case number )

CV
CV
INSTRUCTIONS - PLEASE READ CAREFULLY
1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California
state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief
from the conviction and/or the sentence. This form is your petition for relief.
2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment
entered by a different California state court, you must file a separate petition.
3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts
in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to
submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
the grounds for relief from the conviction and/or sentence that you challenge.
5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you
must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you
must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to
your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
7. When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California
United States Courthouse
ATTN: Intake/Docket Section
312 North Spring Street
Los Angeles, California 90012
CV-69 (05/12)

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

Page 1 of 11

PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
This petition concerns:
1.
a conviction and/or sentence.
2.
prison discipline.
3.
a parole problem.
4.
other.
PETITION
1. Venue
a. Place of detention
b. Place of conviction and sentence
2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts) :

b. Penal or other code section or sections:

c. Case number:
d. Date of conviction:
e. Date of sentence:
f.

Length of sentence on each count:

g. Plea (check one) :
Not guilty
Guilty
Nolo contendere
h. Kind of trial (check one) :
Jury
Judge only

3. Did you appeal to the California Court of Appeal from the judgment of conviction?

Yes

No

If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
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(3)
(4)
(5)
(6)
c. Date of decision:
d. Result

4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal
decision?

Yes

No

If so give the following information

(and attach copies of the Petition for Review and the Supreme Court ruling if available) :

a. Case number:
b. Grounds raised (list each) :
(1)
(2)
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result

5. If you did not appeal:
a. State your reasons

b. Did you seek permission to file a late appeal?

Yes

No

6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?
G Yes

G No

If so, give the following information for each such petition (use additional pages if necessary, and attach copies of the petitions and the
rulings on the petitions if available):

a. (1) Name of court:
(2) Case number:
(3) Date filed
CV-69 (05/12)

(or if mailed, the date the petition was turned over to the prison authorities for mailing):

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

Page 3 of 11

(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?

Yes

No

b. (1) Name of court:
(2) Case number:
(3) Date filed

(or if mailed, the date the petition was turned over to the prison authorities for mailing) :

(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?

Yes

No

c. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)

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PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

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(5) Date of decision:
(6) Result

(7) Was an evidentiary hearing held?
7.

Yes

No

Did you file a petition for certiorari in the United States Supreme Court?

Yes

No

If yes, answer the following:
(1) Docket or case number (if you know):
(2) Result:

(3) Date of result (if you know):
(4) Citation to the case (if you know):

8. For this petition, state every ground on which you claim that you are being held in violation of the Constitution,
laws, or treaties of the United States. Attach additional pages if you have more than five grounds. Summarize
briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you
must state facts specifically setting forth what your attorney did or failed to do.
CAUTION:

Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust
your state court remedies with respect to each ground on which you are requesting relief from the
federal court. This means that, prior to seeking relief from the federal court, you first must
present all of your grounds to the California Supreme Court.

a. Ground one:
(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal?

Yes

No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court?

Yes

No

(4) Did you raise this claim in a habeas petition to the California Supreme Court?

Yes

No

b. Ground two:
(1) Supporting FACTS:

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PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

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(2) Did you raise this claim on direct appeal to the California Court of Appeal?

Yes

No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court?

Yes

No

(4) Did you raise this claim in a habeas petition to the California Supreme Court?

Yes

No

(2) Did you raise this claim on direct appeal to the California Court of Appeal?

G Yes

G No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court?

G Yes

G No

(4) Did you raise this claim in a habeas petition to the California Supreme Court?

G Yes

G No

(2) Did you raise this claim on direct appeal to the California Court of Appeal?

G Yes

G No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court?

G Yes

G No

(4) Did you raise this claim in a habeas petition to the California Supreme Court?

G Yes

G No

Yes

No

c. Ground three:

(1) Supporting FACTS:

d. Ground four:
(1) Supporting FACTS:

e. Ground five:
(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal?
CV-69 (05/12)

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

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(3) Did you raise this claim in a Petition for Review to the California Supreme Court?

Yes

No

(4) Did you raise this claim in a habeas petition to the California Supreme Court?

Yes

No

9. If any of the grounds listed in paragraph 7 were not previously presented to the California Supreme Court, state
briefly which grounds were not presented, and give your reasons:

10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?
Yes

No

If so, give the following information for each such petition

(use additional pages if necessary, and attach copies of the petitions and

the rulings on the petitions if available):

a. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?

Yes

No

b. (1) Name of court:
(2) Case number:
(3) Date filed

(or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
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PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

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(6) Result

(7) Was an evidentiary hearing held?

Yes

No

11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to
this judgment of conviction?

Yes

No

If so, give the following information (and attach a copy of the petition if available):
(1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
12. Are you presently represented by counsel?

Yes

No

If so, provide name, address and telephone number:

WHEREFORE, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding,

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on
Date

CV-69 (05/12)

Signature of Petitioner

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

Page 8 of 11

Petitioner

Respondent(s)

ELECTION REGARDING
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE JUDGE

•

A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case,
including dispositive matters, and entry of final judgment. However, a magistrate judge may be assigned
to rule on dispositive matters only if all parties voluntarily consent.

•

Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive
consequences.

•

If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to
the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.

•

Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge
will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to
the district judge as to all dispositive matters.

Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge,
and sign below.
Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.

No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.
Executed on
Date

CV-69 (05/12)

Signature of Petitioner/Counsel for Petitioner

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

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Petitioner

DECLARATION IN SUPPORT
OF REQUEST
TO PROCEED
IN FORMA PAUPERIS

Respondent(s)

I,

, declare that I am the petitioner in the above entitled case;

that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am
entitled to relief.

1. Are you presently employed?

Yes

No

a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your
employer.
b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which
you received.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment?

Yes

No

b. Rent payments, interest or dividends?

Yes

No

c. Pensions, annuities or life insurance payments?

Yes

No

d. Gifts or inheritances?

Yes

No

e. Any other sources?

Yes

No

If the answer to any of the above is yes, describe each source of money and state the amount received from each
during the past twelve months:

3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)
Yes
CV-69 (05/12)

No
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

Page 10 of 11

If the answer is yes, state the total value of the items owned:

4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary
household furnishings and clothing)

Yes

No

If the answer is yes, describe the property and state its approximate value:

5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how
much you contribute toward their support:

I, declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date

Signature of Petitioner

CERTIFICATE
I hereby certify that the Petitioner herein has the sum of $

on account to his credit
institution where he is

at the

confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said
institution:

Date

CV-69 (05/12)

Authorized Officer of Institution/Title of Officer

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)

Page 11 of 11

NAME, ADDRESS & TELEPHONE NUMBER OF ATTORNEY(S) FOR PARTY, OR NAME,
ADDRESS & INMATE ID # OF PETITIONER IF PETITIONER IS PRO PER

CLEAR FORM

ATTORNEYS FOR:

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER

Petitioner,
v.

Respondent.

I

CONSENT TO PROCEED BEFORE A UNITED STATES
MAGISTRATE JUDGE
(STATE /FEDERAL HABEAS CASE)

NOTICE OF A MAGISTRATE JUDGE’S AVAILABILITY
1.

2.

You are free to withhold consent to magistrate judge jurisdiction.

3.

If both parties consent to have a magistrate judge decide the case, either party may appeal directly to the
Ninth Circuit Court of Appeals, as if a district judge had decided the matter.

4.

II

A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case, including
dispositive matters, and entry of final judgment. However, a magistrate judge can be assigned to rule on
dispositive matters only if all parties voluntarily consent.

If both parties do not consent to have a magistrate judge decide the case, the assigned magistrate judge will
continue to decide all non-dispositive matters, and will issue a Report and Recommendation to the district
judge as to all dispositive matters.

CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES
I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.

Name of Counsel OR Party if Pro Per

Signature and date

Counsel for (Name Party)
_______________________________
_______________________________

III

NOTICE TO COUNSEL FROM CLERK
All parties having consented to proceed before the assigned magistrate judge, please specify the case number as
on all documents subsequently filed in this case.

CV-11B (01/09) CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE (STATE/FEDERAL HABEAS CASE)