(HC) Johnson v. Sherman

Filing 4

ORDER Granting Petitioner Leave to File Amended Petition signed by Magistrate Judge Erica P. Grosjean on 9/7/2021. First Amended Petition due within thirty (30) days. (Attachments: # 1 2254 Petition Form). (Jessen, A)

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Case 1:21-cv-01313-EPG Document 4 Filed 09/07/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY RAY JOHNSON, 12 Petitioner, 13 14 15 Case No. 1:21-cv-01313-EPG-HC ORDER GRANTING PETITIONER LEAVE TO FILE AMENDED PETITION v. ORDER DIRECTING CLERK OF COURT TO MAIL PETITIONER BLANK § 2254 HABEAS FORMS STUART SHERMAN, Respondent. 16 17 Petitioner Billy Ray Johnson is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. 20 DISCUSSION 21 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 22 of a habeas petition and allows a district court to dismiss a petition before the respondent is 23 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 24 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 25 Cases in the United States District Courts, 28 U.S.C. foll. § 2254; see also McFarland v. Scott, 26 512 U.S. 849, 856 (1994). 27 Habeas Rule 2(c)(5) states that the habeas petition must “be signed under penalty of 28 perjury by the petitioner.” Here, Petitioner did not sign the petition under penalty of perjury. 1 Case 1:21-cv-01313-EPG Document 4 Filed 09/07/21 Page 2 of 2 1 (ECF No. 1). Accordingly, the Court will grant Petitioner the opportunity to file an amended 2 petition, and Petitioner must sign the amended petition under penalty of perjury. 3 II. 4 ORDER 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Petitioner is GRANTED THIRTY (30) days from the date of service of this order in 7 which to file an amended petition that is signed under penalty of perjury; and 8 2. The Clerk of Court is DIRECTED to send Petitioner blank § 2254 habeas forms. 9 Petitioner is forewarned that failure to follow this order may result in a recommendation 10 for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 11 failure to prosecute or to comply with a court order may result in a dismissal of the action). 12 13 14 IT IS SO ORDERED. Dated: September 7, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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