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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 ZACKERY HURT, Petitioner, 5 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. 6 7 No. C 12-05120 YGR (PR) THE SUPERIOR COURT, Respondent. 8 / 9 United States District Court For the Northern District of California 10 Petitioner, a state prisoner, filed a document entitled "Petition for Writ of Mandate" with the 11 Court in the instant case, which was opened as a mandamus action. He has also filed an application 12 to proceed in forma pauperis as well as another document entitled, "The Petitioner Request for an 13 Order to Show Cause or Preemtory [sic] Extrodinary [sic] Relief." In the latter document, Petitioner 14 challenges his conviction and requests that the Court treat his "Writ of Mandamus" as a habeas 15 corpus action. The Court construes his motion as a request to amend his petition to be considered a 16 habeas corpus action, and GRANTS his request. 17 18 19 DISCUSSION A. Standard of Review A district court may entertain a petition for writ of habeas corpus "in behalf of a 20 person in custody pursuant to the judgment of a State court only on the ground that he is in custody 21 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose 22 v. Hodges, 423 U.S. 19, 21 (1975). 23 A district court shall "award the writ or issue an order directing the respondent to show cause 24 why the writ should not be granted, unless it appears from the application that the applicant or 25 person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only 26 where the allegations in the petition are vague or conclusory, palpably incredible, or patently 27 frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge 28 v. Allison, 431 U.S. 63, 75-76 (1977)). 1 2 B. Petitioner's Claims Petitioner has not completed the Court's habeas corpus petition form. Instead, Petitioner 3 initially completed what appears to be a blank form from state court, entitled "Petition for Writ of 4 Mandate." Moreover, in his request to amend the petition to be considered a habeas corpus action, 5 Petitioner did not attach a completed federal habeas form. Thus, the Court cannot fairly evaluate the 6 petition in its present state. 7 Furthermore, based on the information in the instant petition, the Court cannot determine 8 whether Petitioner has exhausted his claims in the California courts before filing this habeas action. 9 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 10 or through collateral proceedings, by presenting the highest state court available with a fair 11 opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 12 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 13 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be 14 given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. 15 Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's 16 established appellate review process"). Therefore, Petitioner cannot present claims to this Court 17 which he has not first raised in the highest state court available, the Supreme Court of California. 18 The Court cannot fairly evaluate the petition in its present state. Accordingly, the Court will 19 allow Petitioner an opportunity to file an amended petition on the Court's habeas form to correct 20 these deficiencies. 21 CONCLUSION 22 1. Petitioner's motion to proceed in forma pauperis is GRANTED. 23 2. Petitioner's motion entitled, "The Petitioner Request for an Order to Show Cause or 24 Preemtory [sic] Extrodinary [sic] Relief" (docket no. 4), is construed as a request to amend his 25 petition to be considered a habeas corpus action. The Court GRANTS his request. 26 27 28 2 1 3. No later than twenty-eight (28) days from the date of this Order, Petitioner shall file 2 with the Court the attached 28 U.S.C. § 2254 habeas petition form, completed in full, including the 3 state post-conviction relief he has sought and any claims he seeks to raise in federal court. Petitioner 4 must set out how he has exhausted his claims, that is, what he did to present them first to the highest 5 state court available, which is the Supreme Court of California. Finally, he should clearly write in 6 the correct caption and case number for this action, C 12-05120 YGR (PR). 7 4. If Petitioner fails to file a completed § 2254 habeas petition form within the twenty- 8 eight-day deadline, the case will be closed for failure to prosecute under Rule 41(b) of the Federal 9 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 10 41(b), a district court may sua sponte dismiss an action for failure to prosecute or to comply with a 11 court order); see also Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987) (the 12 district court should afford the litigant prior notice before dismissing for failure to prosecute). 13 5. The Clerk of the Court shall send Petitioner a blank § 2254 habeas petition form. 14 6. This Order terminates Docket no. 4. 15 IT IS SO ORDERED. 16 DATED: January 30, 2013 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\YGR\HC.12\Hurt5120.DWLA.wpd 3

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