Smith v. People of Alameda County

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND 6 . (Illston, Susan) (Filed on 9/1/2017) (Additional attachment(s) added on 9/1/2017: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY SMITH,
Petitioner,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
PEOPLE OF ALAMEDA COUNTY,

Re: Dkt. Nos. 1, 6

Respondent.

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United States District Court
Northern District of California

Case No. 17-cv-03096-SI

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Anthony Smith, a prisoner at the High Desert State Prison, filed this pro se action seeking

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a writ of habeas corpus. His petition is now before the court for review pursuant to 28 U.S.C.

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§ 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall “award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243.

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A habeas petitioner must “specify all the grounds for relief available to [him]” and “state

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the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases in the United

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States District Courts; see also Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990)

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(habeas petitioner must state his claims with sufficient specificity); Wacht v. Cardwell, 604 F.2d

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1245, 1246-47 (9th Cir. 1979) (same). A primary purpose of Rule 2(c)’s demand that habeas

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petitioners plead with particularity is to assist the district court in determining whether the

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respondent should be ordered to show cause why the writ should not be granted. Mayle v. Felix,

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545 U.S. 644, 655-56 (2005) (citing 28 U.S.C. § 2253). Conclusory allegations in a habeas

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petition fail to state a claim and do not suffice to shift the burden to the respondent to answer an

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order to show cause. See Allard v. Nelson, 423 F.2d 1216, 1217 (9th Cir. 1970).
Smith’s petition fails to state a claim for federal habeas relief. Smith has not alleged any

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violation of the Constitution, laws or treaties of the United States. And he has not alleged any

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coherent set of facts showing such a violation. In the portion of the form where a petitioner is

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instructed to state his claims for relief, Smith wrote only the following: “New law under the 3

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strikes repeal. My base term is burglary.” Docket No. 1 at 5. In his amended petition, Smith

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must identify each particular provision in the Constitution, laws or treaties of the United States

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United States District Court
Northern District of California

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that was violated. He also must allege facts showing each such violation.

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Smith also has failed to clearly identify the decision he is challenging. He alleges that he

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was sentenced to “38 to life under 3 strikes,” but he does not state the crimes of which he was

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convicted, or the date when that sentence was imposed. Docket No. 1 at 1.

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information about the conviction, combined with the incoherent claim for relief, leaves the reader

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uncertain as to the particular decision being challenged in the present petition. It is quite likely

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that he is challenging a burglary conviction that resulted in a sentence of 38 years to life, but it

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also is possible that he has had some subsequent proceeding, such as a hearing on a petition for

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resentencing under the Three Strikes Reform Act, California Penal Code § 1170.126. In his

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amended petition, Smith must clearly identify the decision he is challenging, e.g., his conviction,

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or a denial of a petition for resentencing, or some other decision.

The lack of

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A further problem is that the petition may be an unauthorized second or successive

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petition. The general rule is that a prisoner may file only one federal petition for writ of habeas

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corpus to challenge a conviction and resulting sentence; a later petition challenging the same

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conviction and sentence is subject to dismissal as being a second petition (i.e., presenting a new

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claim that could have been presented in the first petition) or a successive petition (i.e., presenting

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the same claim again after it was presented in the first petition). A second or successive petition

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may not be filed in this court unless the petitioner first obtains from the United States Court of
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Appeals an order permitting this court to consider the petition. 28 U.S.C. § 2244(b)(3)(A).

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Smith’s first federal petition for writ of habeas corpus challenging the 2007 burglary conviction

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for which he had received a sentence of 38 years to life was filed in 2013 and dismissed as time

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barred on May 22, 2014. See Docket No. 23 in Smith v. Grounds, Case No. 13-cv-206 SI. If

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Smith is attempting to challenge the burglary conviction and sentence imposed in 2007, he must

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explain why this action should not be dismissed for failure to first obtain permission from the

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Ninth Circuit to file a second or successive petition.
Finally, Smith’s request for appointment of counsel is DENIED. Docket No. 6. The court

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will not consider a request for appointment of counsel unless and until there is a petition on file

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that meets the basic requirements set out in this order, i.e., a petition that (a) states one or more

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United States District Court
Northern District of California

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claims for a violation of Smith’s rights under the Constitution, laws or treaties of the United

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States; (b) sets out the facts supporting each such claim; (c) identifies the decision being

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challenged; and (d) is not a second or successive petition.

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The petition for writ of habeas corpus is DISMISSED WITH LEAVE TO AMEND. Smith

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must file an amended petition curing the deficiencies identified in this order. In preparing his

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amended petition, Smith should bear in mind that this court cannot consider a claim unless state

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court remedies have been exhausted for that claim. The exhaustion requirement means that he

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must present each and every claim to the California Supreme Court in a petition for review or in a

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habeas petition to give that court a fair opportunity to rule on the merits of it before this court can

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consider the claim. Smith must file an amended petition no later than October 6, 2017. The

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amended petition should have the case caption and case number on the first page and should be

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clearly marked "Amended Petition." Failure to file the amended petition by the deadline will

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result in the dismissal of this action.

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IT IS SO ORDERED.
Dated: September 1, 2017
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SUSAN ILLSTON
United States District Judge

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