Herrera v. Frauenheim

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 3/13/15 ORDERING that Petitioners request for leave to proceed in forma pauperis, 4 , is granted; Petitioners application for writ of habeas corpus, ECF No. 1 , is dismissed with leave to file an amended petition within thirty days from the filing date of this order; and the Clerk of the Court is directed to send petitioner the following: (a) a copy of the first portion of petitioners original petition (ECF No. 1 at pp. 1-18 only); and (2) a blank copy of the form used in this court to petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EFRAIN HERRERA, JR.,1

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Petitioner,

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No. 2:15-cv-00053 JAM AC P

v.

ORDER

S. FRAUENHEIM, Warden,

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Respondents.

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

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pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

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Examination of petitioner’s financial affidavit demonstrates that petitioner is unable to

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afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28

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U.S.C. § 1915(a).
However, petitioner has failed to clearly specify the grounds on which he seeks relief.

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Petitioner’s references to his attachments, e.g. “See Memorandum (A) opening brief and

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Memorandum (B) petition for review,” and “See memorandum (A) and (B)),” ECF No. 1 at 8,

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fail to specify or, upon examination, clarify petitioner’s claims. In addition, although petitioner

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Decisions from the state courts that are attached to the petition identify petitioner’s last name as
Leon-Herrera, Jr. The California Department of Corrections and Rehabilitation identifies
petitioner as Efrain Leon Herrera. See http://inmatelocator.cdcr.ca.gov/.
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has attached two denials of relief by the California Supreme Court (an April 17, 2013 denial of a

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petition for review, ECF No. 1 at 9; and an December 10, 2014 denial of a petition for writ of

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habeas corpus), the petition fails to indicate that any of petitioner’s claims have been exhausted in

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the California Supreme Court. See e.g., ECF No. 1 at 3. The attachments themselves do not

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identify the claims that had been presented to the California Supreme Court.

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In order to pursue a petition for writ of habeas corpus under 28 U.S.C. § 2254, the petition

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must, in pertinent part, “(1) specify all the grounds for relief available to the petitioner; [and] (2)

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state the facts supporting each ground. . . .” Rule 2(c), Rules Governing § 2254 Cases. In

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addition, the exhaustion of available state remedies is a prerequisite to the federal court’s

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jurisdiction. See 28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509 (1982). A petitioner

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satisfies the exhaustion requirement by providing the state’s highest court with a full and fair

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opportunity to consider all of petitioner’s claims before presenting them to the federal court.

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Picard v. Connor, 404 U.S. 270, 276 (1971).

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For these reasons, the instant petition will be dismissed with leave to file an amended

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petition that clearly identifies each of petitioner’s grounds for relief, the facts supporting each

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ground for relief, and the exhaustion of each ground in the California Supreme Court. Petitioner

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need not provide any exhibits that have already been submitted to the court; the amended petition

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will be construed to include the exhibits attached to the original petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis, ECF No. 4, is granted;

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2. Petitioner’s application for writ of habeas corpus, ECF No. 1, is dismissed with leave

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to file an amended petition within thirty days from the filing date of this order;2

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3. The amended petition must bear the case number assigned to this action and the title
“Amended Petition;” and

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4. The Clerk of the Court is directed to send petitioner the following: (a) a copy of the
first portion of petitioner’s original petition (ECF No. 1 at pp. 1-18 only); and (2) a blank copy of
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By setting this deadline the court makes no finding or representation concerning the timeliness
of this action or the possibility of dismissal on that basis.
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the form used in this court to petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
5. Failure to timely comply with this order will result in a recommendation that this

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action be dismissed without prejudice.

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DATED: March 13, 2015

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