(HC) Chunn v. Harris, No. 2:2015cv02662 - Document 12 (E.D. Cal. 2016)

Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/11/16 ORDERING that 10 Findings and Recommendations are VACATED; it is RECOMMENDED that the amended petition be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER CHUNN, 12 13 14 15 No. 2:15-cv-2662 TLN CKD P Petitioner, v. ORDER & KAMALA HARRIS, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a patient at Napa State Hospital, brings this federal habeas action pro se. On 18 January 6, 2016, the original petition was dismissed with leave to amend. (ECF No. 8.) On 19 February 17, 2016, the undersigned issued findings and a recommendation of dismissal due to 20 petitioner’s failure to timely file an amended petition. (ECF No. 10.) As petitioner has since 21 filed an amended petition, this recommendation will be vacated. 22 The amended petition is now before the court for screening. Petitioner challenges a 23 January 2016 proceeding in the Solano County Superior Court that resulted in a 90-day sentence; 24 however, he further states: “All charges dropped.” (ECF No. 11 at 1.) He indicates that he has 25 not sought review by a higher state court. (Id. at 2.) The factual and legal bases of petitioner’s 26 claims are unclear. 27 28 Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice 1 1 pleading is not sufficient; rather, the petition must state facts that point to a real possibility of 2 constitutional error.” Rule 4, Advisory Committee Notes, 1976 Adoption; see Blackledge v. 3 Allison, 431 U.S. 63, 75 n. 7 (1977). Allegations in a petition that are vague, conclusory, or 4 palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 5 (9th Cir. 1990). Habeas Rule 4 provides for summary dismissal of a habeas petition “[i]f it 6 plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 7 not entitled to relief in the district court.” 8 9 Like the original petition (see ECF No. 8), the amended petition does not meet the pleading requirements of Rule 2(c). Moreover, it does not appear that petitioner has exhausted 10 his state court remedies for any federal claims concerning the January 2016 sentence. The 11 exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas 12 corpus. 28 U.S.C. § 2254(b)(1). 13 14 As it appears that further leave to amend would be futile, the undersigned will recommend that the amended petition be summarily dismissed under Habeas Rule 4. 15 16 Therefore, IT IS HEREBY ORDERED that the February 17, 2016 recommendation of dismissal is hereby VACATED. 17 18 IT IS HEREBY RECOMMENDED that the amended petition be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, petitioner may file written 22 objections with the court. Such a document should be captioned “Objections to Magistrate 23 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 24 certificate of appealability should issue in the event he files an appeal of the judgment in this 25 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 26 deny a certificate of appealability when it enters a final order adverse to the applicant). 27 //// 28 //// 2 1 Petitioner is advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: March 11, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 2 / chun2662.ap_fr 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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