Caridad v. Oreol

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/30/2015 GRANTING petitioner's 2 request to proceed IFP; the petition is DISMISSED without prejudice pursuant to Habeas Rule 2(c); petitioner has 30 days to file an amended petition as described in this order; and petitioner's failure to timely file an amended petition will result in a recommendation that this action be dismissed. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN T. CARIDAD,

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No. 2:15-cv-0403 CKD P

Petitioner,

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v.

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HARRY OREOL,

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ORDER

Respondent.

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Petitioner, a civil detainee proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

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From documents in the record, it appears that petitioner is involuntarily committed to state

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custody due to a severe mental disorder. (See ECF No. 7.)

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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

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28 U.S.C. § 1915(a).

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Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the

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petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice

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pleading is not sufficient; rather, the petition must state facts that point to a real possibility of

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constitutional error.” Rule 4, Advisory Committee Notes, 1976 Adoption; see Blackledge v.

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Allison, 431 U.S. 63, 75 n. 7 (1977). Allegations in a petition that are vague, conclusory, or
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palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491

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(9th Cir. 1990).

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Here, the petition does not meet the pleading requirements of Rule 2(c). (See ECF No. 1

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at 4-5.) Accordingly, the court will summarily dismiss the petition pursuant to Rule 2(c).

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Petitioner will be granted thirty days to file an amended petition that complies with Rule 2(c) and

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all other applicable rules.

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In addition, it does not appear that petitioner has exhausted state remedies for any

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challenge to his confinement. (See ECF No. 1 at 2, 5; ECF No. 6.) The exhaustion of state court

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remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. §

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2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s counsel.

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28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A

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petitioner satisfies the exhaustion requirement by providing the highest state court with a full and

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fair opportunity to consider all claims before presenting them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert.

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denied, 478 U.S. 1021 (1986).

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

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1. Petitioner’s request for leave to proceed in forma pauperis is granted;

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2. The petition is dismissed without prejudice pursuant to Habeas Rule 2(c);

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

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as described above; and

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4. Petitioner’s failure to timely file an amended petition will result in a recommendation

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that this action be dismissed.

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Dated: March 30, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / cari0403.R2(c)
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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. §
2254(b)(2).
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