Stamos v. Warden - SVSP
Filing
22
ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/29/11 granting 20 Motion to Proceed IFP. The petition for writ of habeas corpus 1 is dismissed with leave to amend. Petitioner has 30 days from the entry of this order in which to file an amended petition. (Plummer, M)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JAMES GEORGE STAMOS, Jr.
11
12
Petitioner,
No. CIV S-11-2722 KJM CKD P
vs.
13
14
WARDEN – SALINAS VALLEY
STATE PRISON
15
Respondent.
16
ORDER
/
17
Petitioner, a state prisoner proceeding without counsel, has filed an application for
18
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in forma
19
pauperis.
20
Examination of the trust account documents and petitioner’s affidavit shows that
21
petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in
22
forma pauperis is granted. See 28 U.S.C. § 1915(a).
23
Petitioner alleges that his right to appeal his conviction and his right to counsel on
24
appeal were denied. However, petitioner does not adequately state any factual support for those
25
allegations. “[A] claim for relief in habeas corpus must include reference to a specific federal
26
constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief.”
1
1
Gray v. Netherland, 518 U.S. 152, 162-63 (1996); see also Rule 2(c), Rules Governing § 2254
2
Cases. The court cannot order the petition to be served unless it contains a statement of facts that
3
tells the respondent and the court what actions by a state court deprived petitioner of his right to
4
an appeal or his right to appellate counsel. Therefore, the court will dismiss the original petition
5
and allow petitioner an opportunity to submit an amended petition that sufficiently states the
6
factual bases of his claims.
7
If petitioner chooses to file an amended petition, the court will examine it
8
according to the same screening standards applied to his original petition. In addition, plaintiff is
9
informed that the court cannot refer to a prior pleading in order to make plaintiff’s amended
10
petition complete. Local Rule 220 requires that an amended pleading be complete in itself
11
without reference to any prior pleading. This is because, as a general rule, an amended complaint
12
or petition supersedes the original. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
13
petitioner files an amended petition, the original no longer serves any function in the case.
14
Therefore, in an amended petition, as in an original petition, each habeas claim and the factual
15
bases underlying it must be sufficiently and completely alleged.
16
Finally, petitioner is admonished that failure to submit an amended petition within
17
the time allowed by this order will result in a recommendation that the petition be dismissed
18
pursuant to Fed. R. Civ. P. 41(b).
19
In accordance with the above, IT IS HEREBY ORDERED that:
20
1. Petitioner’s request to proceed in forma pauperis (Docket No. 20) is granted.
21
2. The petition for writ of habeas corpus (Docket No.1) is dismissed, with leave
22
to amend. Petitioner has thirty days from the entry of this order in which to file an amended
23
////
24
////
25
////
26
////
2
1
petition. If he submits an amended petition, he should label it “First Amended Petition” on the
2
first page.
3
Dated: November 29, 2011
4
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
5
6
7
8
9
10
hm
11
stam2722.ord
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
