Herina v. California Deparment of Corrections et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER F. HERINA,
No. 2:16-cv-2964-EFB P
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Petitioner is a state prisoner proceeding without counsel. This action was opened when he
filed the first page of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
ECF No. 1. The “petition” is incomplete and is not signed. Petitioner also filed a document with
the words “requesting dismissal” and a large “X” drawn across the page. It is not clear whether
petitioner intends to proceed with an application for a writ of habeas corpus or if he wishes to
abandon this action.
Regardless, petitioner has not properly commenced this action. To commence a civil
action, a party is required to file a complaint or a petition. Fed. R. Civ. P. 3; Rule 3, Rules
Governing § 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203 (2003). Moreover, Rule 11 of
the Federal Rules of Civil Procedure requires that “[e]very pleading, written motion, and other
paper . . . be signed by at least one attorney of record in the attorney’s name—or by a party
personally if the party is unrepresented.” Fed. R. Civ. P. 11(a).
If petitioner wishes to abandon this action, he may file a notice of voluntary dismissal in
accordance with Rule 41(a)(1) of the Federal Rules of Civil Procedure. If, however, petitioner
wishes to challenge a judgment of conviction entered against him in state court, he must file an
application for a writ of habeas corpus using this court’s form petition. In addition, he must either
file an in forma pauperis affidavit or pay the required filing fee ($5.00). See 28 U.S.C. §§
1914(a); 1915(a). Until he submits a petition and either pays the filing fee or meets the
requirements of 28 U.S.C. § 1915(a), there is simply no case before the court.
Accordingly, it is hereby ORDERED that:
1. The Clerk of the Court shall send to petitioner the court’s forms for application for writ
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
4. Failure to comply with this order may result in this case being closed.
DATED: January 17, 2017.
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