Walter Lopez v. Warden
Filing
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ORDER DISMISSING CASE by Magistrate Judge Victor B. Kenton, The Petition therefore is DISMISSED with leave to amend. If Petitioner desires to pursue this action, he is ordered to file an Amended Petition correcting the deficiencies discussed above wi thin 30 days of the date of this Order. The Clerk is DIRECTED to send Petitioner a Central District of California blank habeas petition form for this purpose. The Amended Petition should reflect the same case number, be clearly labeled First Amended Petition, and be filled out completely. Petitioner is cautioned that his failure to timely file an Amended Petition in compliance with this Order will result in a recommendation that the action be dismissed without prejudice for failure to prosecute. (SEE ORDER FOR FURTHER DETAILS) (Attachments: # 1 Federal Habeas Corpus Packet) (lmh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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WALTER LOPEZ,
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Petitioner,
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v.
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WARDEN,
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Respondent.
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No. CV 11-07273-JST (VBK)
ORDER DISMISSING PETITION WITH
LEAVE TO AMEND
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On September 2, 2011, Walter Lopez (hereinafter referred to as
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“Petitioner”) filed a “Petition for Writ of Habeas by a Person in
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Federal Custody” pursuant to 28 U.S.C. §2241.
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Petitioner is in federal custody but is challenging his state court
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conviction for burglary and grand theft in 2010. (See Petition at 2.)
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The Court’s initial review of the Petition reveals that it suffers
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from the following deficiencies:
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(1)
It appears that
The Petition does not name the proper respondent.
currently
is
in
federal
custody,
the
Since
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Petitioner
only
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appropriate respondent is the federal officer having custody
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of him, which in this case would be the Warden at Mira Loma
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Detention Center at Lancaster, California, where Petitioner
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currently is incarcerated.
(2)
See also 28 U.S.C. §2242.
It appears conclusively from the face of the Petition that
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state remedies have not been exhausted.
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indication in the Petition whatsoever that the California
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Court of Appeal or California Supreme Court have been given
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an opportunity to rule on Petitioner’s contentions.
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A federal court will not review a state prisoner’s petition
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for writ of habeas corpus unless it appears that the
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prisoner has exhausted available state remedies on each and
claim
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every
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Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see
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Rose v. Lundy, 455 U.S. 509, 522 (1982).
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federalism, 28 U.S.C. § 2254 requires federal courts to give
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the
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violations of its prisoners’ federal rights.”
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Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983).
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Exhaustion requires that the prisoner’s contentions be
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fairly presented to the highest court of the state.
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Carothers, supra, 594 F.2d at 228; see Allbee v. Cupp, 716
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F.2d 635, 636-37 (9th Cir. 1983).
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fairly presented unless the prisoner has described in the
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state court proceedings both the operative facts and the
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federal legal theory on which his claim is based.
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Anderson v. Harless, 459 U.S. 4, 6 (1982); Pappageorge v.
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Sumner, 688 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S.
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1219 (1983).
states
presented.
an
initial
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U.S.C.
opportunity
§
There is no
2254(b)
to
and
(c);
“For reasons of
correct
alleged
Kellotat v.
A claim has not been
See
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The Petition therefore is DISMISSED with leave to amend.
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If
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Petitioner desires to pursue this action, he is ordered to file an
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Amended Petition correcting the deficiencies discussed above within 30
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days of the date of this Order.
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Petitioner a Central District of California blank habeas petition form
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for this purpose.
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number, be clearly labeled “First Amended Petition,” and be filled out
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completely.
The Clerk is DIRECTED to send
The Amended Petition should reflect the same case
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Petitioner is cautioned that his failure to timely file an
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Amended Petition in compliance with this Order will result in a
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recommendation that the action be dismissed without prejudice for
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failure to prosecute.
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DATED:
September 12, 2011
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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