Salvador Carrillo Leon v. L S McEwen

Filing 9

ORDER DISMISSING PETITION for Writ of Habeas Corpus and Granting Petitioner Leave to File Amended Petition Within Thirty (30) Days, signed by Magistrate Judge Gary S. Austin on 7/16/2013. (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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SALVADOR CARRILLO LEON,

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Petitioner,
v.

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L. S. McEWEN, Warden,
Respondent.

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1:13-cv-00922 GSA HC
ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING
PETITIONER LEAVE TO FILE AMENDED
PETITION
ORDER DIRECTING CLERK OF COURT TO
MAIL PETITIONER A BLANK HABEAS FORM
[THIRTY DAY DEADLINE]

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On May 24, 2013, Petitioner filed a petition for writ of habeas corpus in the United States

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District Court for the Central District of California. Because the petition challenges Petitioner’s 2010

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conviction sustained in Tulare County Superior Court, the case was transferred to the Eastern District

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and received in this Court. Petitioner has consented to the jurisdiction of the Magistrate Judge

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pursuant to 28 U.S.C. § 636(c).

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DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review

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of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears

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from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing

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Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). The Advisory

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Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus,

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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). A petition

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for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable

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claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir.

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1971).
In this case, Petitioner challenges his 2010 conviction in Tulare County Superior Court for

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second degree murder, gross vehicular manslaughter while intoxicated, and driving under the

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influence causing great bodily injury. A review of the petition reveals that Petitioner has failed to state

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any claims for relief. Accordingly, the petition will be dismissed. Petitioner will be granted the

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opportunity to file a first amended petition to set forth his claims for relief. Petitioner is advised that

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he must reference the instant case number and designate his petition as a “First Amended Petition.”

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Petitioner is forewarned that failure to comply with this order will result in dismissal of the action.
ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED with leave to amend;

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2) Petitioner is GRANTED thirty (30) days from the date of service of this order to file a first

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amended petition; and
3) The Clerk of Court is DIRECTED to send Petitioner blank forms for filing a habeas action.

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IT IS SO ORDERED.

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Dated:

July 16, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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