Moore v. Singh
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/14/2011 ORDERING that petitioner's 2 request to proceed IFP is GRANTED; petitioner has 30 days to file an amended complaint, if petitioner chooses. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MAURY DAVID MOORE
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Petitioner,
vs.
VAMIL SINGH, et al.
Respondent.
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No. CIV S-11-2718 CKD P
ORDER
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Petitioner, a state prisoner proceeding without counsel and in forma pauperis, has
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filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application
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to proceed in forma pauperis.
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Examination of the trust account documents and petitioner’s affidavit shows that
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petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in
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forma pauperis is granted. See 28 U.S.C. § 1915(a).
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“[A] claim for relief in habeas corpus must include reference to a specific federal
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constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief.”
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Gray v. Netherland, 518 U.S. 152, 162-63 (1996); see Rule 2(c), Rules Governing § 2254 Cases.
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Petitioner alleges two claims of prosecutorial misconduct and two claims of ineffective
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assistance of counsel. The claims of prosecutorial misconduct appear to have been alleged with
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sufficient factual support. However, there are no factual descriptions of the two instances of
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ineffective assistance of counsel beyond the cursory allegations written on the face of the
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petition. Petitioner alleges only that his counsel was ineffective in failing to investigate and
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present evidence corroborating witness testimony that “could have precluded conviction[;]” and
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he alleges his counsel was ineffective in failing to investigate “that there was another individual
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involved[.]” Pet. at 6. Petitioner provides no more factual background than that.
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Petitioner will be afforded an opportunity to file an amended petition that contains
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the factual specificity required in a habeas petition. He must at the very least describe the
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evidence or witness testimony that he claims would have changed the outcome of the trial had his
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counsel investigated and presented that evidence or testimony in court. If he chooses to file an
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amended petition, the court will examine it according to the same standards it has applied to this
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petition. In addition, plaintiff is informed that the court cannot refer to a prior pleading in order
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to make plaintiff’s amended petition complete. Local Rule 220 requires that an amended
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pleading be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint or petition supersedes the original. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once petitioner files an amended petition, the original no longer
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serves any function in the case. Therefore, in an amended petition, as in an original petition,
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each habeas claim and the factual bases underlying it must be sufficiently alleged. In other
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words, petitioner may not rely on the claims he has already alleged in this petition. Instead, he
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must re-state all of the claims he wishes to bring to court for habeas relief.
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If petitioner chooses to rest on the original petition and not file an amended
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petition, he will be able to proceed only on the claims of prosecutorial misconduct. The court
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will dismiss the claims of ineffective assistance of counsel for failure to state sufficient facts in
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support of the claims.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s request to proceed in forma pauperis (Docket No. 2) is granted.
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2. Petitioner has thirty days in which to file an amended petition. If petitioner
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chooses not to file an amended petition, he will be able to proceed only on the claims of
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prosecutorial misconduct. The court will dismiss the claims of ineffective assistance of counsel
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for failure to state sufficient facts in support of the claim.
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Dated: November 14, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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