Lees v. Hedgepeth

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 6/8/2011 ORDERING ptnr to submit, w/in 30 days, an affidavit to proceed ifp or the appropriate filing fee; ptnr's 1 habeas corpus petition is DISMISSED; ptnr is GRANTED 30 days to file an amended petition; the clerk to send ptnr an ifp form; and ptnr's failure to comply will result in the dismissal of this action. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEXANDER LEES,
Petitioner,

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No. CIV S-11-1422 DAD P

vs.

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A. HEDGEPETH, Warden,

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Respondent.

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ORDER
/

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma

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pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).

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Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of

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a request to proceed in forma pauperis or submit the appropriate filing fee.

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In addition, petitioner will be directed to file an amended petition for a writ of

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habeas corpus if he wishes to proceed. In any amended petition he elects to file petitioner must

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clearly identify any appeals or collateral attacks he has pursued in state court following his

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underlying conviction and any what claims or issues he has raised in the state courts with respect

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to that conviction. In this regard, the court notes that on his form petition filed in this court

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petitioner has indicated that he filed a direct appeal from his conviction, however he has not
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provided either the date of the state appellate court’s decision or the grounds or issues that he

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raised on appeal. Petitioner has also indicated in his petition that he did not file any post-

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conviction petitions in state court but, contrary to that response, he later asserts that he filed a

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petition with the California Supreme Court.
In his amended petition filed with this court , petitioner must clearly identify the

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claims or issues he raised in state court either on appeal or in state habeas proceedings.

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Petitioner is forewarned that the exhaustion of state court remedies is a prerequisite to the

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granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies

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the exhaustion requirement by providing the highest state court with a full and fair opportunity to

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consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270,

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276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1986).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner shall submit, within thirty days from the date of service of this order,

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an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;

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petitioner's failure to comply with this order will result in the dismissal of this action;

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2. Petitioner’s petition for writ of habeas corpus (Doc. No. 1) is dismissed;

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3. Petitioner is granted thirty days from the date of service of this order to file an

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amended petition that complies with the requirements of the Federal Rules of Civil Procedure;

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the amended petition must bear the docket number assigned this case and must be labeled

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“Amended Petition;” petitioner must use the form petition provided by the Clerk of the Court and

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answer each question in the form petition;

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4. The Clerk of the Court is directed to send petitioner a copy of the in forma

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pauperis form used by this district and the form petition for a writ of habeas corpus by a state

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prisoner; and

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/////

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/////
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5. Petitioner’s failure to comply with this order will result in the dismissal of this

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action.

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DATED: June 8, 2011.

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DAD:mp/4
lees1422.101a

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