Herina v. California Deparment of Corrections et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/17/17 ordering the clerk of the court shall send to petitioner the court's form for application for writ of habeas corpus and application for leave to proceed in forma pauperis. Within 30 days of the date of this order, petitioner shall either pay the $5.00 filing fee or submit a complete application for leave to proceed in forma pauperis. Within 30 days of the date of this order, petitioner shall file a petition for writ of habeas corpus. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER F. HERINA,

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No. 2:16-cv-2964-EFB P

Petitioner,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.

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Petitioner is a state prisoner proceeding without counsel. This action was opened when he

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filed the first page of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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ECF No. 1. The “petition” is incomplete and is not signed. Petitioner also filed a document with

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the words “requesting dismissal” and a large “X” drawn across the page. It is not clear whether

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petitioner intends to proceed with an application for a writ of habeas corpus or if he wishes to

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abandon this action.

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Regardless, petitioner has not properly commenced this action. To commence a civil

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action, a party is required to file a complaint or a petition. Fed. R. Civ. P. 3; Rule 3, Rules

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Governing § 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203 (2003). Moreover, Rule 11 of

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the Federal Rules of Civil Procedure requires that “[e]very pleading, written motion, and other

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paper . . . be signed by at least one attorney of record in the attorney’s name—or by a party

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personally if the party is unrepresented.” Fed. R. Civ. P. 11(a).

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If petitioner wishes to abandon this action, he may file a notice of voluntary dismissal in

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accordance with Rule 41(a)(1) of the Federal Rules of Civil Procedure. If, however, petitioner

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wishes to challenge a judgment of conviction entered against him in state court, he must file an

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application for a writ of habeas corpus using this court’s form petition. In addition, he must either

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file an in forma pauperis affidavit or pay the required filing fee ($5.00). See 28 U.S.C. §§

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1914(a); 1915(a). Until he submits a petition and either pays the filing fee or meets the

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requirements of 28 U.S.C. § 1915(a), there is simply no case before the court.

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Accordingly, it is hereby ORDERED that:

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1. The Clerk of the Court shall send to petitioner the court’s forms for application for writ

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of habeas corpus and application for leave to proceed in forma pauperis.
2. Within 30 days of the date of this order, petitioner shall either pay the $5 filing fee or
submit a complete application for leave to proceed in forma pauperis.
3. Within 30 days of the date of this order, petitioner shall file a petition for writ of
habeas corpus.
4. Failure to comply with this order may result in this case being closed.
DATED: January 17, 2017.

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