Fox v. Sherman

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/21/15 ORDERING that 3 Motion to Proceed IFP is GRANTED; Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district; Petitioners application for writ of habeas corpus is dismissed with leave to amend within 30 days from the date of this order; and the Clerk of the Court is directed to send petitioner the courts form petition for writ of habeas corpus. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL ALLAHRAE FOX,

12

No. 2:15-cv-2561 GGH P

Petitioner,

13

v.

14

STU SHERMAN,

15

ORDER

Respondent.

16
17
18
19

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford

20

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

21

28 U.S.C. § 1915(a).

22

The grounds as currently stated are too conclusory to permit the court to determine

23

whether they state a cognizable claim, and contain no supporting facts. For example, Ground

24

One states, “Instruction on Custody Status,” and under supporting facts states, “please see []

25

attached #2.” (ECF No. 1 at 5.) These statements are the sum total of explanation for Ground

26

One. Thus, although petitioner has listed the grounds for relief in his petition, and despite stating

27

that supporting facts are attached, there are no attachments to the petition other than the

28

California Court of Appeals’ opinion. The other grounds are similarly devoid of content. The
1

1

petition also fails to state the relief requested. (Id. at 15.) See Rule 2(c), Rules Governing § 2254

2

Cases.

3

Petitioner does not state what instruction was given or not given in regard to custody

4

status, and the court cannot determine what “custody status” means in this context. The petition

5

does not provide any background on what took place in the trial court. Other than the court of

6

appeals’ opinion, petitioner does not provide the court with any supplemental materials which

7

may have assisted the court in determining what occurred at petitioner’s trial. While the court is

8

cognizant of the low threshold for petitioner at this stage of the proceedings, absent these most

9

basic facts, the court is currently unable to determine whether petitioner alleges a cognizable

10

claim. See, e.g., Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (deficient petition should be

11

dismissed with leave to amend “unless it appears that no tenable claim for relief can be pleaded

12

were such relief granted.”)

13

The notice pleading standard applicable in ordinary civil proceedings does not apply in

14

habeas corpus cases; rather, Rules 2(c), 4, and 5(b) of the Rules Governing Habeas Corpus Cases

15

in the United States District Courts require a more detailed statement of all grounds for relief and

16

the facts supporting each ground; the petition is expected to state facts that point to a real

17

possibility of constitutional error and show the relationship of the facts to the claim. Mayle v.

18

Felix, 545 U.S. 644, 655 (2005). This is because the purpose of the rules is to assist the district

19

court in determining whether the respondent should be ordered to show cause why the writ should

20

not be granted and to permit the filing of an answer that satisfies the requirement that it address

21

the allegations in the petition. Id. Conclusional allegations that are not supported by a statement

22

of specific facts do not warrant habeas relief. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.

23

1995).

24

Therefore, the petition will be dismissed, and petitioner will have the opportunity to file

25

an amended petition. The amended petition shall describe the claims in detail as requested above.

26

Petitioner shall additionally provide the court with copies of any briefs by his attorney and state

27

court opinions, to the extent they are available to him.

28

////
2

1

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

2

1. Petitioner’s motion to proceed in forma pauperis is granted;

3

2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis

4

form used by this district;

5
6

3. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend
within thirty days from the date of this order;1

7

4. Any amended petition must be filed on the form provided with this order, must name

8

the proper respondent, and must state all claims and prayers for relief on the form; it must bear

9

the case number assigned to this action and the title “Amended Petition”; failure to file an

10

amended petition will result in the dismissal of this action; and

11

5. The Clerk of the Court is directed to send petitioner the court’s form petition for writ of

12

habeas corpus pursuant to 28 U.S.C. § 2254.

13

Dated: December 21, 2015

14

/s/ Gregory G. Hollows

15

UNITED STATES MAGISTRATE JUDGE

16
17
18
19

GGH:076/fox2561.101a

20
21
22
23
24
25
26
27
28

1

By setting this deadline the court is making no finding or representation that the petition is not
subject to dismissal as untimely.
3