Mooney v. Baughman

Filing 8

ORDER DISMISSING CASE WITH LEAVE TO AMEND,signed by Magistrate Judge Jennifer L. Thurston on 05/09/2017. First Amended Complaint due 30-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES R. MOONEY,

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Petitioner,

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v.

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D. BAUGHMAN, Warden,

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Respondent.

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Case No.: 1:17-cv-00512-JLT (HC)
ORDER DISMISSING PETITION WITH LEAVE
TO FILE A FIRST AMENDED PETITION
[THIRTY-DAY DEADLINE]

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Petitioner filed a federal habeas petition in the Sacramento Division of this Court on July 27,

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2016. On April 11, 2017, the Court determined venue was proper in the Fresno Division and

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transferred the case. The Court’s preliminary screening of the petition reveals that the petition fails to

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present any cognizable grounds for relief. Therefore, the Court will DISMISS the petition with leave

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to file an amended petition.

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I.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (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.

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B. Failure to State a Cognizable Federal Claim

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The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.

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(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States

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District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a

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person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484

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(1973).

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In order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that
the adjudication of his claim in state court
(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d)(1),(2).
In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases requires that the
petition:
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(5)

Specify all the grounds for relief available to the petitioner;
State the facts supporting each ground;
State the relief requested;
Be printed, typewritten, or legibly handwritten; and
Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for
the petitioner under 28 U.S.C. § 2242.

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Petitioner has failed to comply with Rule 2(c) by failing to specify any ground(s) for relief, the

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facts supporting his ground(s), and the relief requested. Therefore, Petitioner fails to state a

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cognizable federal habeas claim and the petition must be dismissed. However, the Court will grant

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Petitioner an opportunity to file a First Amended Petition curing these deficiencies. Petitioner is
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advised that he should entitle his pleading, “First Amended Petition,” and he should reference the

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instant case number. Failure to comply with this order will result in dismissal of the action.

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III.

ORDER

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Accordingly, the Court ORDERS:

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1) The Petition for Writ of Habeas Corpus is DISMISSED with leave to file an amended
petition; and

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2) Petitioner is GRANTED thirty days from the date of service of this order to file a First
Amended Petition.

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IT IS SO ORDERED.
Dated:

May 9, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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