McKinney v. Acebedo

Filing 13

ORDER signed by Magistrate Judge Dale A. Drozd on 8/28/2014 DISMISSING petitioner's amended petition with leave to file a second amended petition within 30 days; the Clerk shall send petitioner the form for habeas corpus application; and petitioner's 9 motion for appointment of counsel is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO MCKINNEY,

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Petitioner,

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No. 2:14-cv-0475 DAD P

v.

ORDER

J. ACEBEDO,

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Respondents.

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Petitioner is a state prisoner proceeding pro se. Pending before the court is petitioner’s

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amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
After reviewing the amended petition, the court has determined that it must be dismissed.

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

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allegations in a petition are vague, conclusory, patently frivolous or false, or palpably incredible).

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As with petitioner’s original petition, it is not clear from petitioner’s form amended petition what

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his claims for relief are in this action. Petitioner alleges only vague claims of “Prop. 36 Recall

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and Resentencing” and “malicious prosecution.” He also refers the court to the “Clerk’s Record”

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for additional claims. (Am. Pet. at 5-6.) In the interest of justice, the court will grant petitioner

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leave to file a second amended petition.

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In any second amended petition petitioner elects to file, he will need to clarify why he

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believes he is entitled to federal habeas corpus relief. Under Rule 2 of the Rules Governing

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Section 2254 Cases, any petition must:

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(1) specify all the grounds for relief available to the petitioner;

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(2) state the facts supporting each ground;

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(3) state the relief requested;

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(4) be printed, typewritten, or legibly handwritten; and

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(5) be signed under penalty of perjury….

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Rule 2(c), Federal Rules Governing Section 2254 Cases. “[T]he petition is expected to state facts

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that point to a ‘real possibility of constitutional error.’” Rule 4, Advisory Committee Note,

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Federal Rules Governing Section 2254 Cases.
Also pending before the court is petitioner’s motion for appointment of counsel. There

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currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v.

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Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the

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appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule

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8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the

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interests of justice would be served by the appointment of counsel at the present time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s amended petition for writ of habeas corpus is dismissed with leave to file a

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second amended petition within thirty days of the date of service of this order;

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2. Any second amended petition must be filed on the form employed by this court and

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must state all claims and prayers for relief on the form. It must bear the case number assigned to

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this action and must bear the title “Second Amended Petition.” Failure to file a second amended

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petition will result in dismissal of this action;

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3. The Clerk of the Court is directed to send petitioner the form for habeas corpus
application; and
4. Petitioner’s motion for appointment of counsel (Doc. No. 9) is denied.
Dated: August 28, 2014

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DAD:9
mcki0475.amd(2)

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