Sneed v. Spearman

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 7/17/2018 GRANTING 6 Motion to Proceed IFP and DISMISSING 1 Petition with leave to amend within 30 days from the date of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNIE K. SNEED, 12 13 14 15 No. 2:18-cv-0506 KJN P Petitioner, v. ORDER M.E. SPEARMAN, Warden, Respondent. 16 17 18 19 20 21 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with a request to proceed in forma pauperis. Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall 22 specify all the grounds for relief which are available to the petitioner and of which he has or by 23 the exercise of reasonable diligence should have knowledge and shall set forth in summary form 24 the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 25 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, 26 the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the 27 petition is expected to state facts that point to a real possibility of constitutional error.” Advisory 28 Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977). 1 1 Here, aside from identifying his first claim, petitioner failed to specify the grounds for 2 relief for claims two through four in his 161-page petition. Rather, petitioner asks the reader to 3 “please review attach[ed] 602.” (ECF No. 1 at 7-8.) Similarly, petitioner provides no supporting 4 facts for any of his claims, including his first claim. Petitioner may not simply refer the court and 5 respondent to a 161-page filing. 6 The petition fails to comply with Rule 2(c), Rules Governing Section 2254 Cases. 7 Therefore, the petition is dismissed with leave to amend. Rule 4, Rules Governing Section 2254 8 Cases. In the amended petition, petitioner must set forth each claim for relief and summarize the 9 facts he alleges support each of the identified claims. 10 Finally, petitioner is not required to append exhibits to his petition. However, to avoid 11 duplication on the court’s docket, if petitioner wishes to append the exhibits from his original 12 petition (ECF No. 1 at 10-161) to his amended petition, he may ask the Clerk of the Court to do 13 so. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Petitioner is granted leave to proceed in forma pauperis; 16 2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend 17 within thirty days from the date of this order;1 18 19 3. Any amended petition must bear the case number assigned to this action and the title “Amended Petition”; and 4. The Clerk of the Court is directed to send petitioner the court’s form application for 20 21 writ of habeas corpus. 22 Dated: July 17, 2018 23 24 snee0506.114 25 26 27 28 1 By setting this deadline the court is making no finding or representation that the petition is not subject to dismissal as untimely. 2

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