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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JIMIE TRAN, 1:11-cv-0816 MJS HC 10 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 11 v. 12 13 K. ALLISON, Warden, (Doc. 1) 14 Respondent. / 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition labeled "Notice of 18 Appeal and Extension of Time" on May 18, 2011. (ECF No. 1.) 19 DISCUSSION 20 Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition “... 21 must specify all the grounds for relief available to the petitioner; state the facts supporting 22 each ground; state the relief requested...” Rule 2 of the Rules Governing 2254 Cases. 23 Rule 2 further provides that the petition “must substantially follow either the form appended 24 to these rules or a form prescribed by a local district-court rule. The clerk must make forms 25 available to petitioners without charge.” Id. at 2(d). 26 In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a 28 petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." -1- 1 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 2 (9th Cir. 1990). 3 Here, Petitioner has not used the standard form petition and has not stated the 4 grounds for relief, facts supporting such grounds, or the relief he seeks. Instead, Petitioner 5 states he will file a petition and requests an extension of the statute of limitations. The 6 Court lacks the authority to grant an extension of time in which to file a habeas corpus 7 petition. However, Petitioner may file a habeas corpus petition, and then request the 8 petition be stayed to exhaust state remedies once the petition is filed. 9 The notice filed with the Court may not be sufficient to be considered a habeas 10 corpus petition. The statute of limitations may continue to run until an appropriate petition 11 is filed. 12 The Court will, however, grant Petitioner leave to file an amended petition. 13 Accordingly, it is HEREBY ORDERED that: 14 1. Petitioner is GRANTED thirty (30) days from the date of service of this Order 15 to SUBMIT an AMENDED PETITION. The amended petition should be 16 clearly and boldly titled “AMENDED PETITION,” contain the appropriate case 17 number, and be an original signed under penalty of perjury; 2. 18 The Clerk of Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2254; and, 19 3. 20 Petitioner is forewarned that his failure to comply with this order may result 21 in a Recommendation that the petition be dismissed pursuant to Local Rule 22 110. 23 24 25 26 IT IS SO ORDERED. 27 Dated: ci4d6 May 23, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?