Hunt v. Superior Court County of Santa Clara

Filing 7

ORDER by Judge Yvonne Gonzalez Rogers granting 3 Motion for Leave to Proceed in forma pauperis; Granting Petitioner's Request for Leave to Amend Petition; and Order of Dismissal with Leave to Amend. Terminating 4 Motion for Order to Show Cause. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/30/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ZACKERY HURT,
Petitioner,

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ORDER GRANTING PETITIONER'S
MOTION TO PROCEED IN FORMA
PAUPERIS; GRANTING HIS REQUEST
FOR LEAVE TO AMEND PETITION;
AND ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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No. C 12-05120 YGR (PR)

THE SUPERIOR COURT,
Respondent.

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United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed a document entitled "Petition for Writ of Mandate" with the

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Court in the instant case, which was opened as a mandamus action. He has also filed an application

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to proceed in forma pauperis as well as another document entitled, "The Petitioner Request for an

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Order to Show Cause or Preemtory [sic] Extrodinary [sic] Relief." In the latter document, Petitioner

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challenges his conviction and requests that the Court treat his "Writ of Mandamus" as a habeas

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corpus action. The Court construes his motion as a request to amend his petition to be considered a

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habeas corpus action, and GRANTS his request.

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DISCUSSION
A.

Standard of Review
A district court may entertain a petition for writ of habeas corpus "in behalf of a

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

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court shall "award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant or

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person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only

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where the allegations in the petition are vague or conclusory, palpably incredible, or patently

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frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge

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v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

Petitioner's Claims
Petitioner has not completed the Court's habeas corpus petition form. Instead, Petitioner

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initially completed what appears to be a blank form from state court, entitled "Petition for Writ of

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Mandate." Moreover, in his request to amend the petition to be considered a habeas corpus action,

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Petitioner did not attach a completed federal habeas form. Thus, the Court cannot fairly evaluate the

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petition in its present state.

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Furthermore, based on the information in the instant petition, the Court cannot determine

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whether Petitioner has exhausted his claims in the California courts before filing this habeas action.

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Federal habeas petitioners are first required to exhaust state judicial remedies, either on direct appeal

United States District Court
For the Northern District of California

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or through collateral proceedings, by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28

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U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S.

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1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be

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given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v.

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Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's

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established appellate review process"). Therefore, Petitioner cannot present claims to this Court

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which he has not first raised in the highest state court available, the Supreme Court of California.

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The Court cannot fairly evaluate the petition in its present state. Accordingly, the Court will

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allow Petitioner an opportunity to file an amended petition on the Court's habeas form to correct

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these deficiencies.

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CONCLUSION

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1.

Petitioner's motion to proceed in forma pauperis is GRANTED.

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2.

Petitioner's motion entitled, "The Petitioner Request for an Order to Show Cause or

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Preemtory [sic] Extrodinary [sic] Relief" (docket no. 4), is construed as a request to amend his

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petition to be considered a habeas corpus action. The Court GRANTS his request.

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3.

No later than twenty-eight (28) days from the date of this Order, Petitioner shall file

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with the Court the attached 28 U.S.C. § 2254 habeas petition form, completed in full, including the

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state post-conviction relief he has sought and any claims he seeks to raise in federal court. Petitioner

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must set out how he has exhausted his claims, that is, what he did to present them first to the highest

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state court available, which is the Supreme Court of California. Finally, he should clearly write in

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the correct caption and case number for this action, C 12-05120 YGR (PR).

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4.

If Petitioner fails to file a completed § 2254 habeas petition form within the twenty-

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eight-day deadline, the case will be closed for failure to prosecute under Rule 41(b) of the Federal

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Rules of Civil Procedure. See Link v. Wabash R.R., 370 U.S. 626, 633 (1962) (pursuant to Rule

United States District Court
For the Northern District of California

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41(b), a district court may sua sponte dismiss an action for failure to prosecute or to comply with a

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court order); see also Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987) (the

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district court should afford the litigant prior notice before dismissing for failure to prosecute).

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5.

The Clerk of the Court shall send Petitioner a blank § 2254 habeas petition form.

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6.

This Order terminates Docket no. 4.

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IT IS SO ORDERED.

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DATED: January 30, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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