Fisher v. Cambra

Filing 5

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge CLAUDIA WILKEN on 10/20/08. (scc, COURT STAFF) (Filed on 10/20/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DAVID FRED FISHER, ) ) Petitioner, ) ) v. ) ) STEVEN CAMBRA, ) ) Respondent. ) ____________________________ ) No. C 08-1635 CW (PR) ORDER DISMISSING PETITION WITH LEAVE TO AMEND

Petitioner David Fred Fisher filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he presumably challenges the validity of his 1994 state conviction for performing a "forcible lewd act on a child under 14." 10.) Petitioner has paid the requisite filing fee. Although Petitioner used the Court's habeas form, it contains no information whatsoever beyond an allegation that the "policeman" imposed a sentence upon him. (Id. at 2.) Petitioner claims he was (Pet. at

charged with (and perhaps convicted of) two counts of Cal. Pen. Code § 288 (lewd act with a child under fourteen involving force), two counts of Cal. Pen. Code § 270 (child neglect) and "continuous sexual abuse." (Pet. at 10.) The facts relating to his For example, he states,

constitutional claims are unintelligible.

"I can't be that make up, that's a resume, continuous sexual abuse on a child, you can't be that make, run over." (Id.) Petitioner

also references the "Twelfth Amendment" to the United States Constitution. (Id. at 11.) Therefore, it is impossible to

ascertain from the petition what claims Petitioner seeks to bring in federal court, much less how he exhausted any of them in the state courts.

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A district 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 in custody in violation of the Constitution or laws or treaties of the United States." (1975). 28 U.S.C. § 2254(a); see Rose v. Hodges, 423 U.S. 19, 21 Prisoners in state custody who wish to challenge in

federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. If available state remedies

Lundy, 455 U.S. 509, 515-16 (1982).

have not been exhausted as to all claims, the district court must dismiss the petition. 372 (9th Cir. 1988). The Court finds the present petition deficient and contrary to federal rules which require that averments "be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). Illogical, confusing petitions Id. at 510; Guizar v. Estelle, 843 F.2d 371,

such as the one Petitioner filed in this case impose unfair burdens on litigants and judges and fail to perform the essential functions of a petition. Cf. McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th

Cir. 1996) (dismissing fifty-three page complaint that (1) failed to specify which defendants were liable on which of the claims and (2) delineated the claims in "122 paragraphs of confusing factual allegations and then merely [made] perfunctory reference to a legal claim said to arise from these undifferentiated facts"). Accordingly, the petition is DISMISSED with leave to amend to correct the deficiencies outlined above. 2

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CONCLUSION For the foregoing reasons, the petition is DISMISSED WITH LEAVE TO AMEND. Within thirty (30) days of the date of this Order, He

Petitioner may file an amended petition as directed above.

should submit the amended petition using the attached blank habeas petition form, clearly label the petition an "Amended Petition," and write in the case number for this action -- Case no. C 08-1635 CW (PR) -- on the form. form. He must fill in all of the blanks on the

If Petitioner fails to file an amended petition within the

thirty-day period, this action will be dismissed with prejudice. The Clerk of the Court shall send Petitioner a blank § 2254 habeas petition form. IT IS SO ORDERED. DATED: 10/20/08 CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David Fred Fisher 1512 166th Avenue San Leandro, CA 94578 Dated: October 20, 2008 v. STEVE CAMBRA et al, Defendant. DAVID F.FISHER, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-01635 CW CERTIFICATE OF SERVICE

/

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 October 20, 2008, 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.

w/blank § 2254 habeas petition form

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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