Chunn v. Harris
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/11/16 ORDERING that 10 Findings and Recommendations are VACATED; it is RECOMMENDED that the amended petition be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WALTER CHUNN,
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No. 2:15-cv-2662 TLN CKD P
Petitioner,
v.
ORDER &
KAMALA HARRIS,
FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a patient at Napa State Hospital, brings this federal habeas action pro se. On
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January 6, 2016, the original petition was dismissed with leave to amend. (ECF No. 8.) On
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February 17, 2016, the undersigned issued findings and a recommendation of dismissal due to
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petitioner’s failure to timely file an amended petition. (ECF No. 10.) As petitioner has since
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filed an amended petition, this recommendation will be vacated.
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The amended petition is now before the court for screening. Petitioner challenges a
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January 2016 proceeding in the Solano County Superior Court that resulted in a 90-day sentence;
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however, he further states: “All charges dropped.” (ECF No. 11 at 1.) He indicates that he has
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not sought review by a higher state court. (Id. at 2.) The factual and legal bases of petitioner’s
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claims are unclear.
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Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the
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). Habeas Rule 4 provides for summary dismissal of a habeas petition “[i]f it
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plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
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not entitled to relief in the district court.”
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Like the original petition (see ECF No. 8), the amended petition does not meet the
pleading requirements of Rule 2(c). Moreover, it does not appear that petitioner has exhausted
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his state court remedies for any federal claims concerning the January 2016 sentence. The
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exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas
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corpus. 28 U.S.C. § 2254(b)(1).
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As it appears that further leave to amend would be futile, the undersigned will recommend
that the amended petition be summarily dismissed under Habeas Rule 4.
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Therefore, IT IS HEREBY ORDERED that the February 17, 2016 recommendation of
dismissal is hereby VACATED.
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IT IS HEREBY RECOMMENDED that the amended petition be summarily dismissed
pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” In his objections petitioner may address whether a
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certificate of appealability should issue in the event he files an appeal of the judgment in this
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case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or
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deny a certificate of appealability when it enters a final order adverse to the applicant).
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Petitioner is advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: March 11, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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