Dunckhurst v. Rackley

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 3/1/2018 DISMISSING with leave to amend 1 Application for Writ of Habeas Corpus. Petitioner to file an amended petition and either submit an application to proceed IFP or the appropriate filing fee, within 30 days from service of this order. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

STEPHEN CHRISTOPHER
DUNCKHURST,
Petitioner,

13
14
15
16
17

No. 2:17-cv-2030 AC P

ORDER
v.
RON RACKLEY,
Respondent.
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

18

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The petition was originally

19

filed in the Ninth Circuit Court of Appeal as an application to file a second or successive petition.

20

ECF No. 2. The Ninth Circuit denied the application as unnecessary because petitioner is

21

challenging the denial of his petition for resentencing under Proposition 36. Id. Because the

22

petition was initially filed as an application to file a second or successive petition, it is not on the

23

petition form used by this district and, as a result, it is missing nearly all of the necessary

24

information regarding petitioner’s underlying conviction and state court proceedings. Because of

25

the form petitioner used, it is also not clear whether he is challenging the denial of his petition for

26

recall, the language of the statute, or both. The petition will therefore be dismissed with leave to

27

amend so that petitioner can provide the necessary information regarding his conviction and

28

clarify his grounds for relief.
1

1
2

Petitioner also has not filed an in forma pauperis application or paid the required filing fee
($5.00) and will be given an opportunity to do so. See 28 U.S.C. §§ 1914(a); 1915(a).

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend.

5

Petitioner shall have thirty days from service of this order to file an amended petition on the form

6

provided by the Clerk of the Court.

7
8
9
10
11

2. Petitioner shall submit, within thirty days from service of this order, an application in
support of his request to proceed in forma pauperis or the appropriate filing fee.
3. Failure to comply with this order will result in a recommendation that this action be
dismissed.
4. The Clerk of the Court is directed to send petitioner the court’s form for an application

12

for writ of habeas corpus and a copy of the in forma pauperis form used by this district.

13

DATED: March 1, 2018

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2