Crump v. Plummer

Filing 19

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 12/12/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/12/2011)

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1 2 3 *E-Filed 12/12/11* 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 15 16 ORDER DISMISSING PETITION WITH LEAVE TO AMEND Petitioner, 13 14 No. C 11-4920 RS (PR) STEVE CRUMP, v. CHARLES PLUMMER, Respondent. / 17 INTRODUCTION 18 19 This appears to be a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 20 by a pro se state prisoner. Petitioner filed a first, and now has filed a second petition. The 21 second petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 22 of the Rules Governing Section 2254 Cases. The $5.00 filing fee for habeas corpus actions 23 has been paid. 24 25 BACKGROUND It is unclear from the petition the current state of petitioner’s convictions. At different 26 points, petitioner indicates that he has been convicted, that his trial ended in a mistrial, that 27 he was retried, or is facing retrial. Petitioner must clear up these ambiguities in his amended 28 No. C 11-4920 RS (PR) ORDER DISMISSING PETITION 1 2 petition. DISCUSSION This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 A district court considering an application for a writ of habeas corpus shall “award the writ 7 or issue an order directing the respondent to show cause why the writ should not be granted, 8 unless it appears from the application that the applicant or person detained is not entitled 9 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 10 United States District Court For the Northern District of California 3 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 11 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 12 It is unclear whether petitioner wishes to challenge the constitutional validity of his 13 conviction, or bring suit against the police for violating his rights, or both. Petitioner may 14 not do both in the same action, and must make it clear which legal course he means to take 15 by filing this action. Accordingly, the petition is DISMISSED WITH LEAVE TO AMEND. 16 As to his civil rights allegations, petitioner is reminded that in order to recover damages for 17 an allegedly unconstitutional conviction or imprisonment, or for other harm caused by 18 actions whose unlawfulness would render a conviction or sentence invalid, a civil rights 19 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 20 expunged by executive order, declared invalid by a state tribunal authorized to make such 21 determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 22 Heck v. Humphrey, 512 U.S. 477, 486–487 (1994). A claim for damages bearing on that 23 relationship to a conviction or sentence that has not been so invalidated is not cognizable 24 under 42 U.S.C. § 1983. Id. at 487. For petitioner, this means that if his convictions are 25 currently valid, he is barred from pursuing a civil rights action against any state actor 26 for actions whose unlawfulness would render his convictions or sentences invalid. 27 Petitioner is also reminded that the filing fee for a civil rights action is $350.00, and that if he 28 2 No. C 11-4920 RS (PR) ORDER DISMISSING PETITION 1 intends the instant action to be a civil rights suit, the Court likely will dismiss the instant 2 action with leave to refile the action as a civil rights suit. 3 Petitioner shall file an amended petition addressing the concerns detailed above within 4 30 days from the date this order is filed. The amended petition must include the caption and 5 civil case number used in this order (11-4920 RS (PR)) and the words AMENDED 6 PETITION on the first page. Because an amended petition completely replaces the previous 7 petitions, petitioner must include in his first amended petition all the claims he wishes to 8 present. Petitioner may not incorporate material from the prior petition by reference. Failure 9 to file an amended petition in accordance with this order will result in dismissal of this action United States District Court For the Northern District of California 10 with prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). 11 IT IS SO ORDERED. 12 DATED: December 12, 2011 RICHARD SEEBORG United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 No. C 11-4920 RS (PR) ORDER DISMISSING PETITION

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