McGraw v. Lizarraga

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 12/3/15 ORDERING that Petitioner shall submit on the form provided by the Clerk of the Court, within 30 days from the date of this order, a complete application for leave to proceed in forma pa uperis, with the certification required by Rule 3(a)(2), or pay the appropriate filing fee; Petitioners petition for writ of habeas corpus (Doc. 1 ) is dismissed with leave to amend; Petitioner shall file an amended petition which satisfies Rul e 2(c) and states all claims and requests for relief, within 30 days of the date of this order; and Clerk of the Court is directed to send petitioner a new form Application to Proceed In Forma Pauperis By a Prisoner and the courts form Habeas Corpus Application.(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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KENNETH WAYNE McGRAW,

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No. 2:15-cv-1150-GEB-CMK-P

Petitioner,
vs.

ORDER

JOE A. LIZARRAGA,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed a complete

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application to proceed in forma pauperis, along with a “certification from the warden or other

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appropriate officer of the place of confinement showing the amount of money or securities that

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the petitioner has in any account in the institution” as required by Rule 3(a)(2) of the Federal

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Rules Governing Section 2254 Cases, or paid the required filing fee. See 28 U.S.C. §§ 1914(a),

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1915(a). Petitioner will be provided the opportunity to submit either a completed application to

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proceed in forma pauperis, with the required certification, or pay the appropriate filing fee. As to

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the certification requirement, while a copy of petitioner’s prison trust account statement certified

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by prison officials is not required to satisfy the requirement, such a statement will suffice.
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Petitioner is warned that failure to comply with this order may result in the dismissal of this

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action for lack of prosecution and failure to comply with court rules and orders. See Local Rule

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110.

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In addition, pending before the court is petitioner’s amended petition (Doc. 1).

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Rule 2(c) of the Federal Rules Governing Section 2254 Cases requires that every habeas corpus

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petition must: (1) specify all the grounds for relief; (2) state the facts supporting each ground for

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relief; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be

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signed under penalty of perjury. In the instant case, the petition fails to meet one or more of

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these requirements. The petition filed in this case only raises a request for equitable tolling based

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on mental illness. It appears petitioner is acknowledging this petition is filed beyond the statute

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of limitations. However, he fails to specify any grounds for relief, allege any facts supporting the

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grounds for relief, or request any relief beyond equitable tolling. Petitioner does not even inform

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the court what conviction he is challenging. Simply stated, petitioner does not provide enough

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information to inform the court or respondent what conviction he is challenging and on what

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grounds.

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Petitioner will be provided an opportunity to file an amended petition which

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satisfies Rule 2(c). Petitioner is warned that failure to comply with this order may result in the

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dismissal of this action. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Petitioner shall submit on the form provided by the Clerk of the Court,

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within 30 days from the date of this order, a complete application for leave to proceed in forma

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pauperis, with the certification required by Rule 3(a)(2), or pay the appropriate filing fee;

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2.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is dismissed with

leave to amend;
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Petitioner shall file an amended petition which satisfies Rule 2(c) and

states all claims and requests for relief, within 30 days of the date of this order; and
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5.

The Clerk of the Court is directed to send petitioner a new form

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Application to Proceed In Forma Pauperis By a Prisoner and the court’s form Habeas Corpus

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Application.

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DATED: December 3, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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