Cummings v. People Of California

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/19/2017 GRANTING petitioner's 5 request to proceed IFP. Petitioner's application for writ of habeas corpus is SUMMARILY DISMISSED. Petitioner is GRANTED 30 days to file an amended petition. The Clerk shall send petitioner a form for application for writ of habeas corpus. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS MARTIN CUMMINGS, 12 Petitioner, 13 14 No. 2:16-cv-2572-EFB P ORDER1 v. PEOPLE OF CALIFORNIA, 15 Respondent. 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 18 28 U.S.C. § 2254.2 Under Rule 4 of the Rules Governing Section 2254 Cases, the court is 19 required to conduct a preliminary review of all petitions for writ of habeas corpus filed by state 20 prisoners. The court must summarily dismiss a petition if it “plainly appears . . . that the 21 petitioner is not entitled to relief . . . .” The court has conducted the review required under Rule 22 4. 23 24 25 26 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4). 2 Petitioner has filed an application for leave to proceed in forma pauperis. Examination of the in forma pauperis application reveals that he is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). 1 Petitioner claims that the state court failed to properly apply all of his credits for time- 2 served to his aggregate sentence of five years and eight-months. See generally ECF No. 4. 3 Under 28 U.S.C. § 2254(a), this court can consider a petition for writ of habeas corpus by a 4 person in state custody “only on the ground that he is in custody in violation of the Constitution 5 [or other federal law].” Because there is no claim before the court that petitioner is in custody in 6 violation of federal law, the court cannot entertain the instant petition. Therefore, the petition for 7 a writ of habeas corpus must be summarily dismissed. 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 5) is granted. 10 2. Petitioner’s application for writ of habeas corpus (ECF No. 4) is summarily dismissed. 11 In an abundance of caution, petitioner is granted 30 days from the date of this order to file an 12 amended petition. Any amended petition must be filed on the form employed by this court and 13 must state all claims and prayers for relief on the form. It must bear the case number assigned to 14 this action and must bear the title “Amended Petition.” Petitioner is cautioned that failure to file 15 an amended petition pursuant to this order may result in the dismissal of this action. 16 3. The Clerk of the Court is directed to send petitioner the court’s form for application for 17 writ of habeas corpus. 18 DATED: April 19, 2017. 19 20 21 22 23 24 25 26 27 28 2

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