Morales v. Warden

Filing 11

ORDER Substituting Acting Warden Fred Foulk as Respondent and ORDER DISMISSING 1 PETITION WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 6/25/2013. First Amended Petition due within thirty (30) days. (Attachments: # 1 2254 Petition Form). (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ERMILIO RODRIGUEZ MORALES,

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Petitioner,

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v.
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FRED FOULK, Warden,
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Respondent.
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1:13-cv—00683–BAM-HC
ORDER SUBSTITUTING ACTING WARDEN
FRED FOULK AS RESPONDENT
ORDER DISMISSING THE PETITION
(DOC. 1) WITH LEAVE TO FILE A
FIRST AMENDED PETITION NO LATER
THAN THIRTY (30) DAYS AFTER
SERVICE OF THIS ORDER

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ORDER DIRECTING THE CLERK TO SEND
PETITIONER A BLANK PETITION FORM

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FILING DEADLINE: THIRTY (30) DAYS

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Petitioner is a state 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. § 2254.

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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which was filed on April 4, 2013, and transferred to this Court
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from the United States District Court, Central District of
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California, on May 9, 2013.
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I.

Substitution of Respondent

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Before the case was transferred, the Respondent was directed
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to respond to the petition.

On May 6, 2013, Respondent filed a

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motion to dismiss the petition for lack of jurisdiction or, in

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the alternative, to transfer the petition to this Court because

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Petitioner was convicted in the Superior Court of the State of

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California, County of Kern, a trial court that is located within

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the territory of this district.

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stated that although Petitioner failed to name a respondent other

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than “Warden,” Fred Foulk is the acting warden at High Desert

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State Prison, where Petitioner is currently incarcerated. (Doc.

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5, 1, n.1.)

In the motion, the Respondent

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Fed. R. Civ. P. 25(d) provides that when a public officer

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who is a party to a civil action in an official capacity dies,

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resigns, or otherwise ceases to hold office while the action is

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pending, the officer’s successor is automatically substituted as

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a party.

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substitution at any time, but the absence of such an order does

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not affect the substitution.

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It further provides that the Court may order

Here, it is clear that in responding to the petition,

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Respondent waived any objection to jurisdiction over the

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Respondent.

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at Petitioner’s institution of confinement in Warden Fred Foulk.

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Respondent further confirmed that the acting warden

Accordingly, it will be ordered that Warden Fred Foulk be
substituted as Respondent.

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II.

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Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

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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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Allegations in a petition

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

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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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).

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Jarvis v. Nelson, 440

Here, Petitioner alleges that he is serving a twenty-five-

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year sentence imposed in the Kern County Superior Court on

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December 17, 2010, for violating Cal. Pen. Code §§ 288a(c)(2),

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288(a)(b)(2), and 288(c)(1).

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claims:

Petitioner alleges the following

1) “SINCE RECANTATIONS RESULT IN REVERSAL PROCEEDING
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DECLARATION FROM SELINA SHOULD SEEK A STOLL EVALUATION HEARING

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ACTUAL INNOCENCE” (doc. 1, 3); 2) “TO BE SUPPRESSION OF EVIDENCE

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WHICH CAN BE SUPPORTED BY THE FACTS WHICH ARE BEING PRESENTED IN

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THE COURT” (id.); and 3) “MS SINGH DID NOT PRESERVE THE ISSUE ON

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THE CREDIBLE IN HER TESTIMONY” (id. at 4).

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Petitioner states supporting facts for each of these claims.

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The facts stated in support of the first claim were that

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Petitioner’s trial attorney was ineffective, and that due process

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was violated under the sentencing guidelines that should have

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been dismissed for reasons relating to expert or forensic

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evidence.

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(Id. at 3.)

The facts supporting the second claim are that petitioner’s

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appellate attorney agreed with a defense expert’s assessment that

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forensic evidence was insufficient to establish guilt beyond a

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reasonable doubt, but that the law gives this determination to

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the jury.

(Id.)

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The supporting facts for the third claim are as follows:

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THE PROSECUTIONS EXPERT GAVE AN OPINION OF THE FORENSIC
THAT EXPERTS SAID YOU DIDN’T DO IT THIS SHOULD HAD BEEN
SUPPRESS AND THE MOTION TO BE SET FOR A NEW TRIAL AND FOR
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL TO BE UPHELD ON];
THE MAJOR POINT OF ALL THE LACK OF EVIDENCE WHICH DIDN’T
SUPPORT THE CLIAM (sic).

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(Id. at 4.)
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The notice pleading standard applicable in ordinary civil
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proceedings does not apply in habeas corpus cases; rather, Habeas
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Rules 2(c), 4, and 5(b) require a more detailed statement of all
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grounds for relief and the facts supporting each ground; the
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petition is expected to state facts that point to a real
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possibility of constitutional error and show the relationship of
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the facts to the claim.

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1976 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005);

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O’Bremski v. Maass, 915 F.2d at 420.

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of the rules is to assist the district court in determining

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whether the respondent should be ordered to show cause why the

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writ should not be granted and to permit the filing of an answer

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that satisfies the requirement that it address the allegations in

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the petition.

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petition that are vague, conclusional, or palpably incredible,

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and that are unsupported by a statement of specific facts, are

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insufficient to warrant relief and are subject to summary

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dismissal.

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James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

Habeas Rule 4, Advisory Committee Notes,

This is because the purpose

Mayle v. Felix, 545 U.S. at 655.

Allegations in a

Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995);

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Petitioner’s statement of his claims is uncertain.

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respect to Petitioner’s first claim, the recantation is not

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identified; further, it is unclear what conduct of Petitioner’s

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trial attorney is the basis of the claim or whether the conduct

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relates to trial proceedings or the sentencing.

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Petitioner’s second claim, it is unclear what evidence was or was

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not suppressed or what aspect of the evidence, if any, was

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insufficient.

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unclear what issue was not preserved or what testimony is

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referred to, and the nature and significance of any expert

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testimony is not clear.

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simply set forth for each claim the legal basis of the claim and

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the facts supporting the claim.

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unclear and uncertain, it would be a futile act for the Court to

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direct the Respondent to file an answer to the petition.

With

With respect to

With respect to Petitioner’s third claim, it is

In short, Petitioner has not clearly and

Because the petition is so

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However, it is possible that Petitioner could clearly and

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simply state the legal bases and the supporting facts for each of

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his claims.

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Accordingly, the claims will be dismissed as uncertain, but

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Petitioner will be given leave to file an amended petition with

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respect to the claims.

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III.

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The instant petition must be dismissed for the reasons

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Amendment of the Petition

stated above.

Petitioner will be given an opportunity to file a

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first amended petition to cure the deficiencies.

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advised that failure to file a petition in compliance with this

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order (i.e., a completed petition with cognizable federal claims

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and the supporting facts clearly stated and with exhaustion of

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state remedies clearly stated) within the allotted time will

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result in the dismissal of the petition and the termination of

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the action.

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Petitioner is

Petitioner is advised that the amended petition should be

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entitled, “First Amended Petition,” and it must refer to the case

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number in this action.

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Local Rule 220 provides that unless prior approval to the

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contrary is obtained from the Court, every pleading as to which

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an amendment or supplement is permitted shall be retyped or

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rewritten and filed so that it is complete in itself without

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reference to the prior or superseded pleading.

Further, Petitioner is informed that

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IV.

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Accordingly, it is ORDERED that:

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1)

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Disposition

The Clerk is DIRECTED to substitute as Respondent in

this action Warden Fred Foulk; and
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2)

The petition for writ of habeas corpus is DISMISSED with

leave to amend; and

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

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service of this order to file an amended petition in compliance

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with this order; and

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3) The Clerk of the Court is DIRECTED to send Petitioner a
form petition pursuant to 28 U.S.C. § 2254.
IT IS SO ORDERED.
Dated:
10c20k

June 25, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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