Maglaya v. People of the State of California

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/26/17 granting 2 Motion to Proceed IFP. The petition is dismissed without prejudice. Petitioner is granted thirty days from the date of this order to file an amended petition as described above. (Plummer, M)

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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 JAYSON MAGLAYA, 12 13 14 15 16 17 18 19 No. 2:16-cv-2694 CKD P Petitioner, v. ORDER PEOPLE OF THE STATE OF CALIFORNIA, Respondent. Petitioner, a state prisoner proceeding pro se, has filed a petition 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 Petitioner was convicted of attempted murder with the use of a dangerous or deadly 23 weapon, for which the Nevada County Superior Court imposed a sentence of 28 years to life. 24 Briefly, petitioner asserts that: (1) one of the jurors was the victim of a burglary for which 25 petitioner had been convicted; 2) petitioner never spoke of killing the victim, whose wounds were 26 not severe; and (3) there was no evidence that petitioner used a weapon. (ECF No. 1.) 27 28 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 1 1 pleading is not sufficient; rather, the petition must state facts that point to a real possibility of 2 constitutional error.” Rule 4, Advisory Committee Notes, 1976 Adoption; see Blackledge v. 3 Allison, 431 U.S. 63, 75 n. 7 (1977). Allegations in a petition that are vague, conclusory, or 4 palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 5 (9th Cir. 1990). 6 Here, the petition does not meet the pleading requirements of Rule 2(c). Accordingly, the 7 court will summarily dismiss the petition. Petitioner will be granted thirty days to file an 8 amended petition that complies with Rule 2(c) and all other applicable rules. Petitioner is 9 encouraged to attach any state court opinion that addresses the claims he now raises in federal 10 court, in order to clarify his claims. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Petitioner’s request for leave to proceed in forma pauperis is granted; 13 2. The petition is dismissed without prejudice pursuant to Habeas Rule 2(c); 14 3. Petitioner is granted thirty days from the date of this order to file an amended petition 15 as described above; 4. Petitioner’s failure to timely file an amended petition will result in dismissal of this 16 17 action. 18 Dated: January 26, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 2 / magl26845.R2(c) 24 25 26 27 28 2

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