Tran v. Allison

Filing 2

ORDER Regarding Petition for Writ of Habeas Corpus, GRANTING Leave to File Amended Petition and DIRECTING Clerk of Court to Send Blank § 2254 Form Petition 1 , signed by Magistrate Judge Michael J. Seng on 5/23/11: Amended Petition due thirty (30) days from the date of service of this Order. (Attachments: # 1 2254 Petition (blank form))(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JIMIE TRAN,

1:11-cv-0816 MJS HC

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Petitioner,

ORDER REGARDING PETITION FOR
WRIT OF HABEAS CORPUS, GRANTING
LEAVE TO FILE AMENDED PETITION
AND DIRECTING CLERK OF COURT TO
SEND BLANK § 2254 FORM PETITION

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v.
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K. ALLISON, Warden,
(Doc. 1)

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Respondent.
/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition labeled "Notice of

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Appeal and Extension of Time" on May 18, 2011. (ECF No. 1.)

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DISCUSSION

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Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition “...

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must specify all the grounds for relief available to the petitioner; state the facts supporting

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each ground; state the relief requested...” Rule 2 of the Rules Governing 2254 Cases.

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Rule 2 further provides that the petition “must substantially follow either the form appended

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to these rules or a form prescribed by a local district-court rule. The clerk must make forms

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available to petitioners without charge.” Id. at 2(d).

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In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make

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a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a

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petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief."
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Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir. 1990).

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Here, Petitioner has not used the standard form petition and has not stated the

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grounds for relief, facts supporting such grounds, or the relief he seeks. Instead, Petitioner

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states he will file a petition and requests an extension of the statute of limitations. The

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Court lacks the authority to grant an extension of time in which to file a habeas corpus

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petition. However, Petitioner may file a habeas corpus petition, and then request the

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petition be stayed to exhaust state remedies once the petition is filed.

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The notice filed with the Court may not be sufficient to be considered a habeas

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corpus petition. The statute of limitations may continue to run until an appropriate petition

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is filed.

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The Court will, however, grant Petitioner leave to file an amended petition.

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Accordingly, it is HEREBY ORDERED that:

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1.

Petitioner is GRANTED thirty (30) days from the date of service of this Order

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to SUBMIT an AMENDED PETITION. The amended petition should be

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clearly and boldly titled “AMENDED PETITION,” contain the appropriate case

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number, and be an original signed under penalty of perjury;
2.

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The Clerk of Court is DIRECTED to send Petitioner a blank form petition for
petitioners filing pursuant to 28 U.S.C. § 2254; and,

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3.

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Petitioner is forewarned that his failure to comply with this order may result

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in a Recommendation that the petition be dismissed pursuant to Local Rule

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110.

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IT IS SO ORDERED.

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Dated:
ci4d6

May 23, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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