Cevallos v. Cate

Filing 18

ORDER signed by Magistrate Judge Dale A. Drozd on 3/12/13 ORDERING that Petitioners May 29, 2012 application to proceed in forma pauperis (Doc. No. 2 ), is granted; Petitioner is granted thirty days from the date of service of this order to file an amended petition; Petitioners June 28, 2012 document styled, Motion Advising Information (Doc. No. 5 ), is DENIED; Petitioners July 16, 2012 document styled, Motion Interrogatory [I]nformation (Doc. No. 6 ), is DENIED; Petitioners July 30, 2012 do cument styled, Motion To [E]stablish Correction (Doc. No. 7 ), is DENIED; Petitioners September 13, 2012 document styled, Motion: To Preserve This Information (Doc. No. 10 ), is DENIED; Petitioners September 13, 2012 document styled, Motion: This Is A Motion Of Responsibility In Realizing A Statutory Animal In The Superior Court Room (Doc. No 11 ), is DENIED; Petitioners September 17, 2012 document styled, Motion For Correction (Doc. No. 12 ), is DENIED; Petitioners December 18, 2012 document styled, Motion: For Decision Entering A Judgment (Doc. No. 14 ) is DENIED; Petitioners January 18, 2013 document styled, Motion: For Discovery Of Information (Doc. No. 15 ), is DENIED; Petitioners February 22, 2013 document styled, Mo tion To Make Respondent Answer Petition (Doc. No. 16 ), is DENIED; Petitioners February 25, 2013 document styled, Motion For Correction Correcting Motion To Make Respondent Answer Petition (Doc. No. 17 ), is DENIED; Petitioner shall not file a ny further motions in this action until the court has had the opportunity to review any amended habeas petition he elects to file in this action and the court has issued an order directing respondent(s) to file a response thereto; and the Clerk of the Court is directed to provide petitioners with the courts form petition for a writ of habeas corpus.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY CEVALLOS,

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Petitioner,
vs.
MATTHEW CATE,
Respondent.

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No. 2:12-cv-01433 DAD P

ORDER
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Petitioner, a former state prisoner, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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However, the court is required to examine a petition for federal habeas corpus

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relief before requiring a response to it. See Rules 3 & 4, Rules Governing § 2254 Cases. “If it

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plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court,

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the judge must dismiss the petition . . . .” Rule 4, Rules Governing § 2254 Cases. Rule 4

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“‘explicitly allows a district court to dismiss summarily the petition on the merits when no claim

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for relief is stated.’” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez
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v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)).

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Rule 2(c) of the Rules Governing Section 2254 Cases requires that a habeas

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petition (1) specify all grounds of relief available to the petitioner; (2) state the facts supporting

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each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the

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petition must state facts that point to a real possibility of constitutional error. Rule 4 of the Rules

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Governing Section 2254 Cases, Advisory Committee Notes, 1976 Adoption; O’Bremski, 915

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F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a federal

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habeas petition that are vague, conclusory, or palpably incredible are subject to summary

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dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Finally, if a federal habeas petitioner is no longer a state prisoner, he must name a

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proper respondent or respondents. In this regard, if a habeas petitioner is on parole, “he may

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name his probation or parole office and the official in charge of the parole or probation

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agency[.]” Ortiz-Sandaval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (internal quotation marks

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omitted).

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Here, it appears that petitioner seeks to challenge his 2010 judgment of conviction

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in the Glenn County Superior Court on the charge of making a criminal threat in violation of

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California Penal Code § 422 with a hate crime sentencing enhancement under California Penal

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Code § 422.75(a). Beyond that, the allegations of the pending federal habeas petition are vague

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and difficult to decipher in every respect.1

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For example, petitioner describes his first ground for relief as follows: “Authoritative
positions purposely stayed away from definitive conclusive investigative information establishing
a First Amendment violation[.]” (Doc. No. 1 at 4.) Petitioner alleges the following facts in
support of this claim for relief: “The quality of this positive information was reduced statutorily
by someone making up a judicial corrupted cooperation. Very carefully these people noticed as
the Prosecution, defendant’s Representative, and the Judge centering on censorship was
removing conclusive interesting defendant information as a power taking stability ability to
operate a visionary purpose for a written Constitution. By surrendering defendant’s defensible
presumed conclusive information to power take from a justice system in collusion . . . .”
(Id. at 4-5.) In short, petitioner’s allegations are incomprehensible.
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Accordingly, the court will summarily dismiss the pending petition and grant

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petitioner leave to file an amended petition which complies with the legal standards set forth

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above. Petitioner is advised, however, that his amended petition will be summarily dismissed

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“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief.” Rule 4, Rules Governing § 2254 Cases.2

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Petitioner has also filed several motions with the court. Those motions too are

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incomprehensible and fail to clarify in any way the grounds for federal habeas relief that

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petitioner is attempting to present. Those motions will be denied as frivolous and petitioner will

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be directed not to file any further motions in this action until the court has determined that he has

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filed an amended petition presenting a cognizable claim for federal habeas relief.

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

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1. Petitioner’s May 29, 2012 application to proceed in forma pauperis (Doc. No.

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2), is granted;

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

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

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petitioner’s failure to file an amended petition in accordance with this order will result in the

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dismissal of this action;

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3. Petitioner’s June 28, 2012 document styled, “Motion Advising Information”
(Doc. No. 5), is denied;

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4. Petitioner’s July 16, 2012 document styled, “Motion Interrogatory

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[I]nformation” (Doc. No. 6), is denied;

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Petitioner is advised that with respect to each claim for federal habeas relief he alleges
he must identify the constitutional amendment that the claim is based upon.
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5. Petitioner’s July 30, 2012 document styled, “Motion To [E]stablish
Correction” (Doc. No. 7), is denied;

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6. Petitioner’s September 13, 2012 document styled, “Motion: To Preserve This
Information” (Doc. No. 10), is denied;

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7. Petitioner’s September 13, 2012 document styled, “Motion: This Is A Motion

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Of Responsibility In Realizing A Statutory Animal In The Superior Court Room” (Doc. No 11),

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is denied;

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8. Petitioner’s September 17, 2012 document styled, “Motion For Correction”
(Doc. No. 12), is denied;

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9. Petitioner’s December 18, 2012 document styled, “Motion: For Decision
Entering A Judgment” (Doc. No. 14) is denied;

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10. Petitioner’s January 18, 2013 document styled, “Motion: For Discovery Of
Information” (Doc. No. 15), is denied;

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11. Petitioner’s February 22, 2013 document styled, “Motion To Make
Respondent Answer Petition” (Doc. No. 16), is denied;

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12. Petitioner’s February 25, 2013 document styled, “Motion For Correction
Correcting Motion To Make Respondent Answer Petition” (Doc. No. 17), is denied;

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13. Petitioner shall not file any further motions in this action until the court has

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had the opportunity to review any amended habeas petition he elects to file in this action and the

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court has issued an order directing respondent(s) to file a response thereto; and

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14. The Clerk of the Court is directed to provide petitioner’s with the court’s

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form petition for a writ of habeas corpus.

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DATED: March 12, 2013.

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DAD:4
cell1433.9

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