Burriola v. Baca

Filing 7

ORDER directing petitioner to file second amended petition within 30 days. Clerk shall send petitioner a petition form with instructions (sent 6/16/14). Signed by Judge Robert C. Jones on 6/16/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY BURRIOLA,

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Petitioner,

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vs.

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Case No. 3:13-cv-00574-RCJ-VPC

ISIDRO BACA, et al.,

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ORDER

Respondents.

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Petitioner has submitted an amended petition (#5) on the court’s form. The court has

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reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Courts. Petitioner will need to submit a second amended petition.

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Petitioner alleges that he was found guilty in a prison disciplinary proceeding. He pursued a

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habeas corpus petition in the state courts. The state district court denied the petition, and the

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Nevada Supreme Court affirmed the denial.

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All seven grounds in the amended petition (#5) share the same defect: They are too vague

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by themselves, and they refer to documents that the court does not possess. For example, in ground

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1 petitioner alleges, in full:

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There is no evidence to support the charges, yet MILLER has admitted (documented
stipulation) that he refused to allow BURRIOLA present a statement to defend the collateral
because he—MILLER—did not have to apply the law or let BURRIOLA continue his
statement.

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Amended petition, at 3 (#5). Petitioner has not attached the “documented stipulation” to the

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petition, and thus the court has no way of knowing if the document actually supports his claim. The

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same problem occurs in every ground. Rule 2 of the Rules Governing Section 2254 Cases in the

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United States District Courts requires petitioner to allege in the body of the petition itself all of his

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grounds for relief and all of the facts that support each ground. See also Mayle v. Felix, 545 U.S.

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644, 655 (2005). The court will give petitioner the opportunity to correct these defects.

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IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner shall have

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thirty (30) days from the date that this order is entered in which to file an amended petition to

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correct the noted deficiencies. Neither the foregoing deadline nor any extension thereof signifies or

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will signify any implied finding of a basis for tolling during the time period established. Petitioner

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at all times remains responsible for calculating the running of the federal limitation period and

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timely asserting claims. Failure to comply with this order will result in the dismissal of this action.

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IT IS FURTHER ORDERED that petitioner shall clearly title the amended petition as such

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by placing the phrase “SECOND AMENDED” immediately above “Petition for a Writ of Habeas

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Corpus Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and petitioner shall place the docket

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number, 3:13-cv-00574-RCJ-VPC, above the phrase “SECOND AMENDED.”

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Dated:

June 16, 2014

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_________________________________
ROBERT C. JONES
United States District Judge

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