Spivey v. McDonald

Filing 7

ORDER Directing Petitioner to File a Signed and Dated Verification of the Petition no Later than Thirty (30) Days after Service of this Order, signed by Magistrate Judge Sheila K. Oberto on 2/20/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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W. C. SPIVEY, III,
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Petitioner,
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v.
M. McDONALD, Warden,

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Respondent.

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1:12-cv—00206-SKO-HC
ORDER DIRECTING PETITIONER TO
FILE A SIGNED AND DATED
VERIFICATION OF THE PETITION NO
LATER THAN THIRTY (30) DAYS AFTER
SERVICE OF THIS ORDER

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.

The

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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 and 303.

Pending before

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the Court is the petition, which was filed on February 13, 2012.
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I.

Screening the Petition

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Rule 4 of the Rules Governing § 2254 Cases in the United
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States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

Habeas Rule 2(c) requires that a petition 1) specify all

Rule 4, Advisory Committee Notes, 1976 Adoption;

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n.7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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II.

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A review of the petition shows that although Petitioner

Lack of a Verification

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respectfully submitted and signed the petition (pet. 6.),

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Petitioner did not date the petition.

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verified within the meaning of 28 U.S.C. § 1746.1

Thus, the petition was not

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Wherever, under any law of the United States or
under any rule, regulation, order, or requirement

Title 28 U.S.C. § 1746 provides:

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Title 28 U.S.C. § 2242 provides in pertinent part:

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Application for a writ of habeas corpus shall
be in writing signed and verified by the person
for whose relief it is intended or by someone
acting in his behalf.

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Likewise, Rule 2 of the Rules Governing Section 2254 Cases in the
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United States District Courts (Habeas Rules) expressly requires
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that the petition “be signed under penalty of perjury by the
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petitioner or by a person authorized to sign it for the
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petitioner under 28 U.S.C. § 2242.”

Habeas Rule 2(c)(5).

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If a petition is insufficient, the rules direct the Clerk to
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file the petition, and the Court may then require the petitioner
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to submit a corrected petition that conforms to Rule 2(c).
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Habeas Rule 3(b); Habeas Rule 2, Advisory Committee Comment, 2004
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made pursuant to law, any matter is required or
permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in
writing of the person making the same (other
than a deposition, or an oath of office, or an
oath required to be taken before a specified
official other than a notary public), such
matter may, with like force and effect, be
supported, evidenced, established, or proved
by the unsworn declaration, certificate,
verification, or statement, in writing of
such person which is subscribed by him, as
true under penalty of perjury, and dated, in
substantially the following form:
(1) If executed without the United States:
“I declare (or certify, verify, or state)
under penalty of perjury under the laws
of the United States of America that
the foregoing is true and correct. Executed
on (date).
(Signature)”.
(2) If executed within the United States, its
territories, possessions, or commonwealths:
“I declare (or certify, verify, or state)
under penalty of perjury that the foregoing
is true and correct. Executed on (date).
(Signature)”.

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Amendments.

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In light of the difficulty in having Petitioner submit a new

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habeas corpus petition, Petitioner will be given an opportunity

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to submit a document stating that he submitted the petition to

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the Court and verifying its contents to be true under penalty of

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perjury of the laws of the United States.

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the document and sign the document under penalty of perjury; the

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document should contain an original signature.

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be granted thirty (30) from the date of service of this order to

Petitioner must date

Petitioner will

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comply with the Court’s directive.

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petition will be suspended pending receipt of the verification.

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Further screening of the

Petitioner is forewarned that failure to comply with a Court

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order will result in dismissal of the petition pursuant to Local

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Rule 110.

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Accordingly, it is ORDERED that:

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1) Petitioner is GRANTED thirty (30) days from the date of

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service of this order in which to file a signed verification of

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the petition in compliance with this order.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 20, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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