Wheeler v. Lizarraga

Filing 14

ORDER signed by Magistrate Judge Deborah Barnes on 5/22/17 ORDERING that Petitioner's Application to proceed IFP 8 is GRANTED. Petitioner's petition (ECF No. 1 ) is dismissed with leave to amend. Within thirty days of the date of this order, petitioner shall file an amended petition. The Clerk of the Court is directed to send petitioner a copy of the form used in this district for pursuing a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is warned that his failure to comply with this order may result in dismissal of this action.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIE WHEELER,

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Petitioner,

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No. 2:15-cv-1629 DB P

v.

ORDER

JOE LIZARRAGA,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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under 28 U.S.C. § 2254. Before the court is petitioner’s petition and motion to proceed in forma

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pauperis (“IFP”). (ECF Nos. 1; 8.) For the reasons set for the below, this court will grant

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petitioner’s request to proceed IFP, dismiss the petition, and provide petitioner an opportunity to

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amend the petition.

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BACKGROUND

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Petitioner initiated this action in 2015 by filing a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Therein, petitioner challenged his 2012 conviction

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and sentence rendered by the Amador County Superior Court. The previously assigned

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Magistrate Judge ordered petitioner to submit an affidavit in support of his request to proceed in

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forma pauperis. (ECF No. 7.) Petitioner timely filed a motion to proceed in forma pauperis in

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response to that order. (ECF No. 8.) On August 2, 2016, the case was reassigned to the

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undersigned. (ECF No. 12.)

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APPLICATION TO PROCEED IFP
Examination of the affidavit accompanying petitioner’s motion to proceed IFP reveals he

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is unable to afford the costs of this action. Accordingly, leave to proceed IFP is granted. 28

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U.S.C. § 1915(a).

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SCREENING
I.

Legal Standards
The court is required to screen all actions brought by prisoners who seek any form of

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relief, including habeas relief, from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion

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thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis

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on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). This means the court must

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dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that

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the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases.

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Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of

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Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these

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rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil

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Procedure, when considering whether a petition presents a claim upon which habeas relief can be

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granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S.

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89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that

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‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant

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habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24

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F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro

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se habeas petitioners may not be held to the same technical standards as litigants represented by

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counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled
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to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual

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inferences in the petitioner's favor.”)

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Rule 2(c) of the Rules Governing § 2254 Cases requires every habeas petition to (1)

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specify all the grounds for relief available to the petitioner; (2) state the facts supporting each

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ground; and (3) state the relief requested. Although, as stated above, pro se petitions receive less

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scrutiny for precision than those drafted by lawyers, a petitioner must give fair notice of his

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claims by stating the factual and legal elements of each claim in a short, plain, and succinct

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manner. See Mayle v. Felix, 545 U.S. 644, 648 (2005) (“In ordinary civil proceedings ... Rule 8

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of the Federal Rules of Civil Procedure requires only 'a short and plain statement[.] ... Rule 2(c)

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of the Rules Governing Habeas Corpus Cases requires a more detailed statement.”) Allegations

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in a petition that are vague, conclusory, or palpably incredible, and that are unsupported by a

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statement of specific facts, are insufficient to warrant relief and are subject to summary dismissal.

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Jones v. Gomez, 66 F.3d 199, 204–05 (9th Cir.1995); James v. Borg, 24 F.3d 20, 26 (9th

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Cir.1994).

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II.

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Discussion
Petitioner claims one ground for habeas relief in his petition. (ECF No. 1.) However, the

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ground stated is overly vague and does not state a cognizable claim. Habeas relief under 28

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U.S.C. § 2254 is available only on the ground that petitioner is in custody in violation of the

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Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). Petitioner’s ground

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for relief simply alludes to a bill that passed the California state senate without any explanation as

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to the contents of that bill and how it applies to petitioner’s case. (ECF No. 1 at 5.) Petitioner

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claims that his plea of nolo contendere falls under the senate bill and so the lower courts erred in

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their rulings. Petitioner also attaches a number of documents from an unrelated case in Fresno

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Superior Court. (Id. at 16-42.) Without further elaboration, the undersigned cannot substantively

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assess whether petitioner’s claim is cognizable. Until petitioner has filed a habeas petition in

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which he alleges at least one claim that is cognizable under 28 U.S.C. § 2254, this court will not

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proceed to ordering that the petition be served.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Petitioner’s application to proceed IFP (ECF No. 8) is granted.

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2. Petitioner’s petition (ECF No. 1) is dismissed with leave to amend.

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3. Within thirty days of the date of this order, petitioner shall file an amended petition.

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The amended petition shall include the case number assigned to this action and shall

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be titled “First Amended Petition.” Petitioner is warned that the court cannot refer to

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his prior petition to make his First Amended Petition complete. Petitioner must

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include all claims for habeas corpus relief in his first amended petition.

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4. The Clerk of the Court is directed to send petitioner a copy of the form used in this
district for pursuing a writ of habeas corpus under 28 U.S.C. § 2254.
5. Petitioner is warned that his failure to comply with this order may result in dismissal
of this action.
Dated: May 22, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / whee.1629.scrn

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