Michael Berry v. Eric Arnold et al

Filing 3

ORDER DISMISSING PETITION WITH LEAVE TO AMEND by Judge Manuel L. Real, re Petition for Writ of Habeas Corpus (2254), 1 . The Petition is dismissed without prejudice. If Petitioner intends to pursue habeas corpus relief in the United States District Court for the Central District of California at this time, Petitioner shall file a First Amended Petition that utilizes the approved form. The First Amended Petition shall be complete in itself. It shall not refer in any manner to the original Petit ion. In other words, Petitioner must start over when preparing the First Amended Petition. The First Amended Petition shall contain a short and plain statement of the grounds for relief and the supporting facts. Failure to file a First Amended Petition within thirty (30) days of the date of this Order may result in the dismissal of this action for failure to prosecute. (dml)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

MICHAEL BERRY,

)
)
Petitioner,
)
)
v.
)
)
ERIC ARNOLD,
)
)
Respondent.
)
)
_________________________________)

NO. CV 17-2140-R(E)

ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

17
18

On March 17, 2017, Petitioner filed a document seeking “Review De

19

Novo under 28 U.S.C. 2254 of California Supreme Court Decision Denying

20

Habeas Corpus, etc.” (“the Petition”).

21

seeks federal habeas review of a state court conviction, does not

22

identify the conviction or allege any reason why the conviction

23

supposedly is unlawful.

The Petition, which evidently

24
25

The Petition is not in proper form for a federal habeas corpus
See L.R. 83-16.1 (“a petition for writ of habeas corpus

26

petition.

27

. . . shall be submitted on the forms approved and supplied by the

28

[United States District] Court”); see also Rule 2(c) and (d) of the

1

Rules Governing Section 2254 Cases in the United States District

2

Courts.

3

which federal habeas relief could be granted.

4

Rules Governing Section 2254 Cases in the United States District

5

Courts, a federal habeas petition must “specify all the grounds for

6

relief available to the petitioner . . . [and] . . . state the facts

7

supporting each ground.”

8

is therefore subject to dismissal.

9

U.S. 63, 75 n.7 (1977) (summary disposition of habeas petition

More fundamentally, the Petition fails to state any claim on
Under Rule 2(c) of the

The present Petition violates Rule 2(c) and
See Blackledge v. Allison, 431

10

appropriate where allegations are vague; “the petition is expected to

11

state facts that point to a real possibility of constitutional error”)

12

(citation, internal quotations and brackets omitted); Ellis v. Cullen,

13

2011 WL 249495, *2-3 (N.D. Cal. Jan. 26, 2011) (“The petition does not

14

provide enough information for the court to determine whether some of

15

the allegations state cognizable claims for relief.

16

information means that the petition would not give respondent fair

17

notice of [petitioner’s] claims, such that he could prepare a

18

meaningful response”).

That same lack of

19
20

The Petition also violates Rule 8(a) of the Federal Rules of

21

Civil Procedure.

Rule 8(a) requires that a pleading contain “a short

22

and plain statement of the claim showing that the pleader is entitled

23

to relief.”

24

Petition fail to show that the Petitioner is entitled to relief.

As previously observed, the allegations of the present

25
26

Accordingly, the Petition is dismissed without prejudice.

If

27

Petitioner intends to pursue habeas corpus relief in the United States

28

District Court for the Central District of California at this time,
2

1

Petitioner shall file a First Amended Petition that utilizes the

2

approved form.

3

itself.

4

In other words, Petitioner must start over when preparing the First

5

Amended Petition.

6

and plain statement of the grounds for relief and the supporting

7

facts.

8

days of the date of this Order may result in the dismissal of this

9

action for failure to prosecute.

The First Amended Petition shall be complete in

It shall not refer in any manner to the original Petition.

The First Amended Petition shall contain a short

Failure to file a First Amended Petition within thirty (30)

10
11

DATED: March 22, 2017.

12
13

_____________________________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

14
15
PRESENTED this 21st day of
16
March, 2017, by:
17
18
19

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
3