McKinney v. Acebedo

Filing 16

ORDER signed by Magistrate Judge Dale A. Drozd on 04/01/15 ordering petitioner's second amended petition 14 is dismissed for failure to state a cognizable claim for federal habeas corpus relief. The court declines to issue a certificate of appealability. This action is closed. CASE CLOSED. (Plummer, M)

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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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No. 2:14-cv-0475 DAD P

Petitioner,
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
second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
PRELIMINARY SCREENING

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254

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Cases. See also O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695

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F.2d 1195, 1198 (9th Cir. 1983). The Advisory Committee Notes to Rule 8 indicate that the court

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may dismiss a petition for writ of habeas corpus at several stages of a case, including “summary

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dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the

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answer and petition are considered; or a dismissal after consideration of the pleadings and an

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expanded record.”
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DISCUSSION
The court will dismiss petitioner‟s second amended petition for failure to state a

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cognizable claim for federal habeas corpus relief.1 See Hendricks v. Vasquez, 908 F.2d 490, 491

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(9th Cir.1990) (dismissal is appropriate when allegations in a petition are vague, conclusory,

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patently frivolous or false, or palpably incredible). As was the case with petitioner‟s original and

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first amended petitions, it is not clear what claims for habeas relief petitioner is attempting to

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present in this action. This is because petitioner asserts only vague claims of “Deny Counsel for

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Prop 36” and “Recall/Resentencing.” (Sec. Am. Pet. at 5.) He also refers this court to the “Clerk

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Records” for additional claims. (Id. at 5-6.)

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The undersigned previously advised petitioner that he needed to clarify why he believes

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he is entitled to federal habeas corpus relief. The court instructed petitioner to specify his

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grounds for relief and state supporting facts for each of his claims as required by Rule 2 of the

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Rules Governing Section 2254 Cases. Nonetheless, once more, petitioner has failed to state any

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federal constitutional claims and/or “facts that point to a „real possibility of constitutional error.‟”

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Rule 4, Advisory Committee Note, Federal Rules Governing Section 2254 Cases. At this

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juncture, and in light of the court‟s two prior orders dismissing with leave to amend (ECF Nos. 7

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& 13), the undersigned finds that granting further leave to amend would be futile. Accordingly,

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the court will dismiss petitioner‟s second amended petition without leave to amend. See Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the

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denial of a motion for leave to amend.”).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner‟s second amended petition (Doc. No. 14) is dismissed for failure to state a

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cognizable claim for federal habeas corpus relief;

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Petitioner has previously consented to Magistrate Judge jurisdiction over this action pursuant to
28 U.S.C. § 636. (Doc. Nos. 3 & 6)
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2. The court declines to issue a certificate of appealability; and

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3. This action is closed.

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Dated: April 1, 2015

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DAD:9
mcki0475.156

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