Ayobi v. Espinosa

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 11/15/17 DENYING 2 Motion to Proceed IFP with leave to file a new application, on the form provided herewith, within thirty days after service of this order. Petitioners petition for a writ of hab eas corpus is dismissed with leave to file an amended petition, on the form provided herewith, within thirty days after service of this order. The Clerk of the Court is directed to send petitioner, together with a copy of this order,the courts forms for requesting leave to proceed in forma pauperis by a prisoner, and for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Plummer, M) Modified on 11/16/2017 (Plummer, M).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SHAJIA AYOBI,

12

Petitioner,

13
14

No. 2:17-cv-02349 AC P

v.

ORDER

ESPINOSA, Warden,

15

Respondent.

16
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

17
18

pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Petitioner,

19

who is incarcerated at the Central California Women’s Facility, challenges her 2013 conviction in

20

the Sacramento County Superior Court.
Examination of petitioner’s filings reveals the following problems. Petitioner’s

21
22

application to proceed in forma pauperis is outdated; plaintiff must submit a new application with

23

current information. Further, the petition is not set forth on the form used in this district for

24

seeking a writ of habeas corpus and, more importantly, appears improperly to challenge the ruling

25

of the Superior Court on collateral review. Petitioner must exhaust her claims in the California

26

Supreme Court before bringing them in federal court.1 While it may be that petitioner exhausted

27
28

1

The exhaustion of state remedies is a prerequisite to a federal court’s jurisdiction to consider
claims presented in a habeas corpus petition. See 28 U.S.C. § 2254(b); see also Rose v. Lundy,
1

1

her claims in the California Supreme Court on direct review, see e.g. ECF No. 1 at 22, this is not

2

clear from the present petition.

3
4

For these reasons, petitioner will be directed to file an amended petition for writ of habeas
corpus, and a new application to proceed in forma pauperis, on the forms provided herewith.

5

Therefore, IT IS HEREBY ORDERED that:

6

1. Petitioner’s application to proceed in forma pauperis is denied with leave to file a new

7

application, on the form provided herewith, within thirty days after service of this order;

8
9

2. Petitioner’s petition for a writ of habeas corpus is dismissed with leave to file an
amended petition, on the form provided herewith, within thirty days after service of this order;2

10
11

3. Failure to timely comply with this order will result in a recommendation that this
action be dismissed without prejudice; and

12

4. The Clerk of the Court is directed to send petitioner, together with a copy of this order,

13

the court’s forms for requesting leave to proceed in forma pauperis by a prisoner, and for filing a

14

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

15

DATED: November 15, 2017

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

455 U.S. 509 (1982). A petitioner satisfies the exhaustion requirement by providing the highest
state court (in California, the California Supreme Court) with a full and fair opportunity to
consider all of his claims before presenting them to the federal court. Picard v. Connor, 404 U.S.
270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.
1021 (1986).
2

By setting this deadline the court is making no finding or representation that the petition is not
subject to dismissal as untimely.
2