Simmons v. Kernan

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/4/2018 DENYING petitioner's 4 application to proceed IFP and DISMISSING the petition with leave to amend. Within 30 days, petitioner shall submit the $5.00 filing fee and an amended petition which remedies the deficiencies identified in this order. The Clerk shall send petitioner a writ of habeas corpus form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MELVIN JOSEPH SIMMONS, Jr.,

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No. 2:17-cv-2276-EFB P

Petitioner,
v.

ORDER

SCOTT KERNAN,
Respondent.

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Petitioner, a state prisoner proceeding pro se on a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, has filed an application to proceed in forma pauperis. ECF No. 4.

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For the reasons stated hereafter, the petition must be dismissed with leave to amend and the

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application to proceed in forma pauperis will be denied.

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Application to Proceed In Forma Pauperis
The court has reviewed petitioner’s application and finds that he has sufficient funds to

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pay the five dollar filing fee for a federal habeas action. The Ninth Circuit has held that

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“permission to proceed in forma pauperis is itself a matter of privilege and not a right; denial of

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an in forma pauperis status does not violate the applicant’s right to due process.” Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir.1984) (citing Weller v. Dickson, 314 F.2d 598, 600 (9th

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Cir.1963)). The court has broad discretion to grant or deny an application to proceed in forma

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pauperis. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.1990). Here, petitioner’s application
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indicates that, as of November 16, 2017, his inmate account had a balance of $1560.74. ECF No.

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4 at 2. Thus, the court concludes that he can afford the five dollar fee and his application will be

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denied on this basis.

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Screening

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A habeas petition is appropriately filed by “a person in custody pursuant to the judgment

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of a State court only on the ground that he is in custody in violation of the Constitution or laws or

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treaties of the United States.” 28 U.S.C. § 2254(a). A judge “entertaining an application for a

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writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to

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show cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. A petition must be

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dismissed if, on initial review, the court finds that “it plainly appears . . . that the petitioner is not

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entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Proceedings.

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An application for federal habeas relief must specify all grounds for relief, state facts

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supporting each ground, and state the relief requested. Rule 2, Rules Governing § 2254

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Proceedings. Rule 8 of the Federal Rules of Civil Procedure requires “a short and plain statement

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of [each] claim showing that the pleader is entitled to relief” and “a demand for the relief sought.”

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While the court must liberally construe the allegations of a prisoner proceeding without counsel

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(see Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006)), the court cannot grant relief based on

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conclusory allegations unsupported by specific facts. Jones v. Gomez, 66 F.3d 199, 204-05 (9th

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Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

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Petitioner’s claims are largely incomprehensible. His petition, though typed, is dense and

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does not appear to adhere to any organizational structure. In his first ground for relief petitioner

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states that the writ supersedes “a void judgment creditor’s power to levy execution.” ECF No. 1

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at 5. The supporting facts for this claim are a collection of non-sequiturs. Petitioner states that he

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is bringing this claim to “[m]ake void the badge of slavery and involuntary bailment.” Id. He

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references “a private right of action to enforce a real right that is connected with Melvin Joseph

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Simmons,” a “presumption of a child without parents the direct an (sic) primary care that gave

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rise to the injuries,” and the English “right of notice of the charges.” Id. It is entirely unclear

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what the basis for this claim is or how it relates to petitioner’s custody.

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Petitioner’s other claims fare no better. He references, inter alia, : (1) “[a] private spirtuel

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(sic) person deprived of liberty by fraud in the factum Los Angeles County Super. Ct. . . . .”; (2)

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his possession of “[l]and wrongfully taken by de facto segregation”; (3) that he is suffering

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“[c]ontinuing general irreparable moratory incidental foreseeable reliance”; (4) that he has been

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subjected to a “civil death sentence on a living person without a trial by special legislative acts”;

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and (5) “copyright infringement upon petitioner’s intellectual property by fraudulent joinder

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which constitute fraud upon the court.” Id. at 5-11.

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Rule 8, Fed. R. Civ. P., requires the pleader to set forth his averments in a simple, concise,

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and direct manner. McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Further, Rule 2 of

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the Rules Governing § 2254 Cases in the U.S. District Courts requires habeas petitioners to

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“specify all the grounds of relief available” and “state the facts supporting each ground.” See

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Mayle v. Felix, 545 U.S. 644, 655-56 (2005) (noting that Rule 2(c) demands that habeas

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petitioner's plead their claims with particularity so that district courts can determine whether the

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state should be ordered to show cause why the writ should not be granted or whether the petition

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should be summarily dismissed without ordering a responsive pleading). The current petition

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does not comply with these requirements and will be dismissed with leave to amend. If petitioner

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elects to amend he must file a petition which is comprehensible and which states his claims

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simply.

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Conclusion

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Based on the foregoing, it is ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 4) is DENIED;

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2. Petitioner shall submit the five dollar filing fee within thirty days of the date this order

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is filed;

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3. The petition is DISMISSED with leave to amend;

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4. Within thirty days of this order’s entry petitioner may submit an amended petition
which remedies the deficiencies identified in this order;

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5. Failure to comply with this order may result in dismissal of the case; and

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6. The Clerk of Court is directed to send petitioner the Petition for a Writ of Habeas

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Corpus form used in this court.

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DATED: October 4, 2018.

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