Owens v. People of the State of California et al

Filing 26

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/24/2019 DISMISSING petitioner's application for writ of habeas corpus with leave to amend within 30 days; and the Clerk shall send petitioner a form application for writ of habeas corpus. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH O. OWENS,

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Petitioner,
v.

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ORDER

PEOPLE OF THE STATE OF
CALIFORNIA, et al.,
Respondents.

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No. 2:15-cv-01286 KJM GGH P

Procedural History
Petitioner, a state prisoner proceeding in pro se, filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 and a motion for stay and abeyance on June 18, 2015. ECF

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Nos. 1, 2. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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On July 18, 2015, the undersigned issued an Order and Findings and Recommendations

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ordering petitioner to show cause why the petitioner should not be dismissed for failure to exhaust

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his state court remedies and recommended that his motion for stay and abeyance be denied. ECF

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No. 7. On October 7, 2015, the Findings and Recommendations were adopted by the presiding

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District Judge and the resolution of the order to show cause was referred back to the undersigned.

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ECF No. 10. On October 19, 2015, the undersigned recommended that the petition be dismissed

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without prejudice due to petitioner’s failure to exhaust his claims, which the presiding District
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Judge adopted on January 11, 2016. ECF Nos. 11, 12. On January 28, 2016, petitioner filed a

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letter that the court construed as a motion for relief from judgment. ECF Nos. 14, 15. On

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February 8, 2016, the undersigned found that petitioner did not meet the necessary requisites for

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that relief and accordingly recommended that the petition be dismissed. ECF No. 15. Shortly

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after the filing of the Findings and Recommendations, the Ninth Circuit Court of Appeals decided

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Mena v. Long, 813 F.3d 907 (9th Cir. 2016). Consequently, on March 18, 2016 the presiding

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District Judge referred the matter back to the undersigned for further consideration as to whether

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petitioner qualified for stay and abeyance under Mena. ECF No. 16. On March 28, 2016, the

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undersigned ordered petitioner to file a second motion for relief from judgment, if any, within 30

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days. ECF No. 17. Petitioner was further notified that if no motion was filed, the court would

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reconsider the existing motion for relief from judgment, ECF No. 14, in light of Mena. ECF No.

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17. After no renewed motion for relief from judgment was filed by petitioner, the undersigned

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withdrew its February 8, 2016 findings and recommendations and recommended that the court

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grant petitioner a stay and hold his pending petition in abeyance until the pending state court

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exhaustion proceedings had been completed. ECF No. 18. Prior to the presiding District Judge

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adopting the February 8, 2016 Findings and Recommendations and granting petitioner a stay and

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holding the petition in abeyance, ECF No. 20, petitioner filed his first amended petition

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acknowledging that he had completed exhausting all his claims with the state. ECF Nos. 23, 24,

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25. Petitioner was granted a stay of this proceeding on January 5, 2017. ECF No. 20. The court

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now lifts the stay.

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The First Amended Petition

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Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall

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specify all the grounds for relief which are available to the petitioner and of which he has or by

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the exercise of reasonable diligence should have knowledge and shall set forth in summary form

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the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section

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2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally,

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the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the

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petition is expected to state facts that point to a real possibility of constitutional error.” Advisory
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Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977).

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Here, it is unclear to the court which federal claims petitioner is seeking to raise in his

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petition. Reviewing the petition and supporting documentation, it appears to the court that

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petitioner is seeking to raise exhausted and unexhausted claims as well as state law claims.

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However, it is confusing to decipher petitioner’s claims in its current form. Accordingly, the

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petition fails to comply with Rule 2(c), Rules Governing Section 2254 Cases. Therefore, the

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petition is dismissed with leave to amend. Rule 4, Rules Governing Section 2254 Cases. In the

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amended petition, petitioner must clearly set forth each federal claim for relief and summarize the

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facts he alleges support each of the identified claims. Petitioner should do his best to utilize

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headings to clearly delineate one claim from the next. Moreover, petitioner must show that each

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federal claim he raises in his amended petition has been properly exhausted through his state

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court remedies.

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Finally, petitioner is not required to append exhibits to his petition. However, to avoid

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duplication on the court’s docket, if petitioner wishes to append the exhibits from his first

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amended petition (ECF No. 23) to his second amended petition, he may ask the Clerk of the Court

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to do so.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend

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within thirty days from the date of this order;1

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2. Any amended petition must bear the case number assigned to this action and the title
“Second Amended Petition”; and

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3. The Clerk of the Court is directed to send petitioner the court’s form application for

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writ of habeas corpus used by this district.

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Dated: January 24, 2019
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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By setting this deadline the court is making no finding or representation that the petition is not
subject to dismissal as untimely.
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