Kelly v. Director, Federal Bureau of Prisions, et al.

Filing 4

ORDER signed by Magistrate Judge Sheila K. Oberto on 1/29/2013 requiring Petitioner to submit a signed Declaration concerning the 1 Petition for Writ of Habeas Corpus. (Filing Deadline: 3/4/2013).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEROY J. KELLY,

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Petitioner,

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v.
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COPENHAVEN, WARDEN AT USPATWATER, et al.,

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Respondents.

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1:13-cv—00117-SKO-HC
ORDER REQUIRING PETITIONER TO
SUBMIT WITHIN THIRTY (30) DAYS A
SIGNED DECLARATION CONCERNING THE
PETITION (Doc. 1)

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Petitioner is a federal prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2241.

The matter has been referred to the

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

Pending before the Court is the petition

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(doc. 1), filed on January 25, 2013.
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I.

Screening the Petition

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The Rules Governing Section 2254 Cases in the United States
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District Courts (Habeas Rules) are appropriately applied to
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proceedings undertaken pursuant to 28 U.S.C. § 2241.

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1(b).

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review of each petition for writ of habeas corpus.

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must summarily dismiss a petition "[i]f it plainly appears from

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the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court....”

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O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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

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2(c) requires that a petition 1) specify all grounds of relief

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available to the Petitioner; 2) state the facts supporting each

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ground; and 3) state the relief requested.

Habeas Rule

Habeas Rule 4 requires the Court to make a preliminary
The Court

Habeas Rule 4;

Habeas Rule

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Notice pleading is not sufficient; the petition must state

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facts that point to a real possibility of constitutional error.

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Rule 4, Advisory Committee Notes, 1976 Adoption; O’Bremski v.

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Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S.

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63, 75 n. 7 (1977)).

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conclusory, or palpably incredible are subject to summary

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dismissal.

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dismiss a petition for writ of habeas corpus either on its own

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motion under Habeas Rule 4, pursuant to the respondent's motion

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to dismiss, or after an answer to the petition has been filed.

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Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see,

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Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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Allegations in a petition that are vague,

Hendricks v. Vasquez, 908 F.2d at 491.

The Court may

Here, Petitioner alleges that he is an inmate of the United

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States Penitentiary at Atwater, California (USPA), serving a

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federal sentence.

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a state sentence and seeks this Court to order Respondent to

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exercise discretion to designate Petitioner to a state

Petitioner alleges that he is also subject to

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institution for service of his federal sentence so that the two

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sentences may run concurrently.

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II.

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The petition is not verified.

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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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Absence of a Verification

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Likewise, Habeas Rule 2 expressly requires that the petition “be
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signed under penalty of perjury by the petitioner or by a person
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authorized to sign it for the petitioner under 28 U.S.C. § 2242.”
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Habeas Rule 2(c)(5).
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If a petition is insufficient, the Clerk must file the
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petition, and the Court may require the petitioner to submit a
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corrected petition that conforms to Rule 2(c).

Habeas Rule 3(b);

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Habeas Rule 2, Advisory Committee Comment, 2004 Amendments.
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Title 28 U.S.C. § 1746 requires that a declaration be
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subscribed as true under penalty of perjury, and be executed
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substantially in the statutory form, which in turn requires a
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declaration “under penalty of perjury that the foregoing is true
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and correct.”

28 U.S.C. § 1746.1

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Title 28 U.S.C. § 1746 provides:

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

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Here, although Petitioner signed the petition, Petitioner
has failed to verify the truth of the petition.

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III.

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Petitioner will be required to submit a verification of the

Disposition

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petition.

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a new habeas corpus petition, Petitioner will be given an

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opportunity to submit a document stating that he submitted the

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petition to the Court and verifying its contents to be true under

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penalty of perjury of the laws of the United States.

In light of the difficulty in having Petitioner submit

Petitioner

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must sign the document under penalty of perjury; the document

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should contain an original signature.

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thirty (30) from the date of service of this order to comply with

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the Court’s directive.

Petitioner will be granted

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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; and

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2) Petitioner is INFORMED that failure to comply with a

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Court order, including the present order, will result in

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dismissal of the petition without prejudice pursuant to Local

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(1) If executed without the United States:

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“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).

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(Signature)”.

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(2) If executed within the United States, its territories, possessions,
or commonwealths:

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

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(Signature)”.

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Rule 110.

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IT IS SO ORDERED.

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Dated:
ie14hj

January 29, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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