-EFB (HC) Dean v. Maness et al, No. 2:2010cv00798 - Document 9 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/9/2011 ORDERING the clerk to randomly assign this case a US District Judge; and RECOMMENDING that this action be dismissed w/out leave to amend and w/out prejudice. Assigned and Referred to Judge Frank C. Damrell, Jr.; Objections to due w/in 14 days. (Yin, K)
Download PDF
<![CDATA[
-EFB (HC) Dean v. Maness et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALTON DEAN, Petitioner, 11 vs. 12 13 No. CIV S-10-0798 EFB P ERIK MANESS, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Respondents. 14 / 15 Petitioner is a state prisoner without counsel and in forma pauperis seeking a writ of 16 17 habeas corpus. See 28 U.S.C. § 2254. Currently pending before the court is petitioner’s 18 amended application for a writ of habeas corpus. For the reasons explained below, the court 19 finds that it must be dismissed without leave to amend. See Rule 4, Rules Governing § 2254 20 Cases. 21 A district court must entertain a habeas petition “in behalf of a person in custody 22 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 23 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A judge 24 entertaining a habeas petition “shall forthwith award the writ or issue an order directing the 25 respondent to show cause why the writ should not be granted, unless it appears from the 26 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. The 1 Dockets.Justia.com 1 petition must be dismissed if on initial review the court finds that “it plainly appears from the 2 petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 3 Rule 4, Rules Governing § 2254 Cases. An application for federal habeas relief must specify all 4 grounds for relief, state facts supporting each ground and state the relief requested. Rule 2, 5 Rules Governing § 2254 Cases. While under Ninth Circuit precedent, this court must liberally 6 construe the allegations of a prisoner proceeding without counsel, see Roy v. Lampert, 465 F.3d 7 964, 970 (9th Cir. 2006), the court cannot grant relief based on conclusory allegations not 8 supported by any specific facts, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. 9 Borg, 24 F.3d 20, 26 (9th Cir. 1994). 10 In its initial screening order of January 19, 2011, this court found it apparent from the 11 petition that petitioner’s state trial proceedings were still ongoing, and that petitioner had thus 12 not exhausted his state remedies as required by 28 U.S.C. § 2254(b)(1) as to the claims 13 concerning his trial counsel, the prosecutor, and the probation office. The court also concluded 14 that petitioner had alleged insufficient facts to warrant relief on those claims. The court further 15 found that petitioner’s claims of inadequate medical treatment while incarcerated were not 16 cognizable in a federal habeas corpus action and noted that petitioner had raised them in a 17 separate civil rights action. 18 The amended petition does not cure these deficiencies. Instead, it shows again that 19 petitioner has not completed exhaustion of his claims in state court – petitioner has appended a 20 copy of a habeas petition he filed with the California Supreme Court dated December 28, 2011. 21 Dckt. No. 8 at 48. That court’s publicly-available docket, of which this court takes judicial 22 notice, shows that the petition remains pending. California Courts – Appellate Case Information, 23 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1966261&doc_n 24 o=S189399 (last visited February 8, 2011). Other documents submitted by petitioner also 25 indicate that state proceedings remain ongoing. E.g., Dckt. No. 8 at 171 (notice of direct appeal 26 filed January 7, 2011). Because the amended petition contains only claims that either have not 2 1 been properly exhausted or are not cognizable in a federal habeas corpus action, the petition 2 must be dismissed. As petitioner has been given the opportunity to state a cognizable claim but 3 has not done so, the undersigned recommends dismissal without leave to amend. Lopez v. Smith, 4 203 F.3d 1122, 1128 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be 5 given leave to file amended complaint unless the court can rule out any possibility that the 6 plaintiff could state a claim). 7 8 9 10 11 Accordingly, it is hereby ORDERED that the Clerk randomly assign this case to a United States District Judge. Further, it is RECOMMENDED that this action be dismissed without leave to amend and without prejudice. These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 18 his objections petitioner may address whether a certificate of appealability should issue in the 19 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 20 § 2254 Cases (the district court must issue or deny a certificate of appealability when it 21 enters a final order adverse to the applicant). 22 Dated: February 9, 2011. 23 24 25 26 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
