Lonnie D. Delaney v. Elvin Valenzuela

Filing 7

ORDER DISMISSING Petition for Writ of Habeas Corpus WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 8/26/15: Thirty-Day Deadline. (Attachments: # 1 2254 Petition - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LONNIE D. DELANEY,
Petitioner,

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ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
WITH LEAVE TO AMEND

v.

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Case No. 1:15-cv-01289-BAM HC

ELVIN VALENZUELA, Warden of CMC,
Respondent.

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(Doc. 1)

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SCREENING ORDER

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.
I.

Preliminary Screening

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary
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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly

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

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Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 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 to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th

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Cir. 1971).

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II.

Signature Under Penalty of Perjury

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A petition for writ of habeas corpus must "be signed under penalty of perjury by the

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petitioner or by a person authorized to sign if for the petition under 28 U.S.C. § 2242." Rule 2(c)(5)

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of the Rules Governing 2254 Cases. Although Petitioner signed his declaration is support of his

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request to proceed in form pauperis, Petitioner failed to sign the petition to sign the petition itself.

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As a result, the Court must dismiss the petition.

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III.

Conclusion and Order
Accordingly, the Court hereby DISMISSES this action for failure to sign the petition under

penalty of perjury. The Court hereby ORDERS:

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1.

The petition for writ of habeas corpus shall be dismissed with leave to amend.

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2.

The Clerk's Office shall send Petitioner a copy of this order and a form for a Petition

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under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.
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Within thirty (30) days of service of this order, Petitioner may file an amended

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petition signed under penalty of perjury.

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4.

If Plaintiff fails to file an amended petition within thirty (30) days from the date

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of service of this order, this action will be dismissed without further notice for lack of

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jurisdiction.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 26, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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