(HC) Spillers v. Covello

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/24/2024 DISMISSING 7 First Amended Petition for Writ of Habeas Corpus. Petitioner is GRANTED 30 days within which to file a second amended petition that complies with the terms of this order. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH D. SPILLERS,

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Petitioner,

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No. 2:24-cv-1865 CKD P

v.

ORDER

PATRICK COVELLO,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an amended petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Under Rule 4 of the Rules Governing Section 2254

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Cases, the court must review all petitions for writ of habeas corpus and summarily dismiss any

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petition if it is plain that the petitioner is not entitled to relief. The court has conducted that

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review.

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Petitioner claims he is not being granted all of the good conduct sentence credit to which

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he is entitled under California law. However, petitioner’s claim is conclusory as he fails to show

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how much credit he has been denied, and why he is entitled to such credit under law. The

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amended petition must be dismissed, but the court will grant petitioner one more opportunity to

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state a claim upon which he can proceed. Petitioner is informed he cannot proceed on any claim

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that has not been presented to and rejected by the California Supreme Court. The exhaustion of

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state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28
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U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest

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state court with a full and fair opportunity to consider all claims before presenting them to the

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federal court. Picard v. Connor, 404 U.S. 270, 276 (1971).

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Accordingly, IT IS HERBY ORDERED that:

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1. Petitioner’s amended petition for a writ of habeas corpus is dismissed.

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2. Petitioner is granted thirty days within which to file a second amended petition that

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complies with the terms of this order. Failure to file a second amended petition within 30 days

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will result in a recommendation that this action be dismissed.

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3. The Clerk of the Court is directed to send petitioner the court’s form-application for a

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writ of habeas corpus by California prisoners.

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Dated: September 24, 2024
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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spil1865.sd

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