Wade v. Foulk

Filing 4

ORDER CONSOLIDATING CASES; DISMISSAL WITH LEAVE TO AMEND; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jeffrey S. White on 11/8/13. (jjoS, COURT STAFF) (Filed on 11/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLENARD CEBRON WADE,
Petitioner,

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vs.
GARY SWARTHOUT,
Respondent.

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No. C 13-4666 JSW (PR)
No. C 13-4677 JSW (PR)
ORDER CONSOLIDATING CASES;
DISMISSAL WITH LEAVE TO
AMEND; GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

(Dkt. 2)

INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, filed two habeas

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corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state

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court conviction and sentence. For purposes of judicial economy, it is preferable for

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Petitioner to have all of his claims in a single petition in a single case. Accordingly, the

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two cases are consolidated, the later-filed case (No. C 13-4677 JSW (PR)) is dismissed,

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and Petitioner is given leave to file an amended petition in Case No. C 13-4666 JSW

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(PR) that includes all of his claims and that corrects the deficiencies noted below. He is

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granted leave to proceed in forma pauperis.

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BACKGROUND
In 2009, Petitioner was convicted in Contra Costa County Superior Court of grand
theft, false imprisonment, assault with a deadly weapon and various sentence

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enhancements. Based on these convictions and enhancements, he was sentenced to a

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term in state prison. The California Court of Appeal affirmed the judgment on appeal,

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and the California Supreme Court denied a petition for review. Habeas petitions filed by

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Petitioner in the Contra Costa County Superior Court, the California Court of Appeal,

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and the California Supreme Court were denied.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “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

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that the applicant or person detained is not entitled thereto.” Id. § 2243.

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II.

Legal Claims

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Petitioner presents a variety of claims in two petitions. All of his claims should

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be set forth in a single petition. In addition, each claim must be clearly numbered and

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labeled, and only claims that assert the violation of federal law, not state law, will be

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considered. Many of the claims do not assert the violation of federal law. For example,

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he complains about various errors in his sentence, but he only cites state law and statutes.

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Petitioner must correct these deficiencies in his amended, to be filed in accordance with

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the instructions below.

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CONCLUSION

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For the foregoing reasons and for good cause shown:

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1.

Case Nos. C 13-4666 JSW (PR) and C 13-4677 JSW (PR) are

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CONSOLIDATED. Case No. C 13-4677 JSW (PR) is DISMISSED; the Clerk shall

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enter judgment and close the file in that case.

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2.

The petition in Case No. C 13-4666 JSW (PR) is DISMISSED WITH
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LEAVE TO AMEND. Within 28 days of the date this order is filed, Petitioner shall file

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an amended petition that sets forth cognizable claims. The amended petition must

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include the caption used in this order and clearly include the case number C 13-4441

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JSW (PR), and it shall include the words “COURT-ORDERED FIRST AMENDED

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PETITION” on the first page. Also, because an amended petition completely replaces

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the original petition, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992),

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Petitioner may not incorporate into any amended petition material from the original

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petition by reference. Failure to file an amended petition within the designated time and

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in accordance with this order will result in the dismissal of this action without prejudice.

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3. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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4.

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IT IS SO ORDERED.

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DATED: November 8, 2013

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Leave to proceed in forma pauperis (dkt. 2) is GRANTED.

JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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CLENARD CEBRON WADE,
Plaintiff,

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Case Number: CV13-04666 JSW
CV13-04677 JSW
CERTIFICATE OF SERVICE

v.
FAULK et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on November 8, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Clenard C. Wade
AA7245
HDSP
P.O. Box 3030
Susanville, CA 96127

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Dated: November 8, 2013

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk