Joseph Blain v. J Hartley, No. 8:2008cv01375 - Document 9 (C.D. Cal. 2009)

Court Description: MEMORANDUM AND OPINION by Judge R. Gary Klausner; IT IS ORDERED that the habeas petition shall be SUMMARILY DISMISSED without prejudice. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JOSEPH BLAIN, Petitioner, 12 13 vs. 14 J. HARTLEY, WARDEN A.S.P. STATE OF CALIFORNIA, 15 Respondent. 16 ) Case No. SACV 08-1375-RGK(RC) ) ) OPINION AND ORDER ON ) PETITION FOR WRIT OF HABEAS CORPUS ) ) ) ) ) ) ) 17 18 On December 3, 2008, petitioner Joseph Blain, a person in state 19 custody proceeding pro se, filed a habeas corpus petition under 28 20 U.S.C. § 2254 challenging his convictions and sentence in Orange 21 County Superior Court case no. 05CF1616 on seven counts of violating 22 California Penal Code § 288, as well as a motion for protective 23 petition and stay of proceedings.1 24 sentence on the sole ground of ineffective assistance of counsel, 25 and states the facts supporting this ground as failure to investigate The petitioner challenges his 26 1 27 28 The Court takes judicial notice under Fed. R. Evid. 201 that the California Supreme Court on November 12, 2008, denied petitioner s request for habeas corpus relief, making his motion for a stay moot. 1 for penalty phase -- without any further explanation of the facts 2 and without citation to any supporting cases to illuminate the facts. 3 Thus, on December 15, 2008, this Court dismissed the petition with 4 leave to amend pursuant to Fed. R. Civ. P. 12(e) and Rule 2 of the 5 Rules Governing Section 2254 Cases in the United States District 6 Courts, see James v. Borg, 24 F.3d 20, 26 (9th Cir.) ( Conclusory 7 allegations which are not supported by a statement of specific facts 8 do not warrant habeas relief. ), cert. denied, 513 U.S. 935 (1994); 9 Jones v. Gomez, 66 F.3d 199, 204-05 & n.1 (9th Cir. 1995), cert. 10 denied, 517 U.S. 1143 (1996), and afforded petitioner 30 days in which 11 to file an amended petition. 12 amended petition.2 However, petitioner has not filed an 13 14 15 DISCUSSION Rule 1 of the Rules Governing Section 2254 Cases in the United 16 States District Courts ("Rules") provides that these Rules govern the 17 procedures in the federal courts on an application under 28 U.S.C. § 18 2254 by a person in custody pursuant to a judgment of a state court. 19 28 foll. U.S.C. § 2254, Rule 1. 20 shall specify all grounds for relief, as well as the facts supporting 21 each ground. 22 facts supporting his claim. 23 dismissing the habeas petition based on its deficiency, the Court 24 instead dismissed it with leave to amend, and ordered petitioner to Id. Rule 2(c) requires that the petition Here, the petitioner has failed to set forth the Rather than immediately summarily 25 26 2 27 28 Rather, petitioner filed another motion for a stay of proceedings. Without a cognizable petition, however, there is no proceeding to stay; thus, petitioner s most recent request for a stay is denied. 2 1 file an amended petition within thirty (30) days. The Court 2 admonished petitioner, however, that [f]ailure to timely file the 3 amended petition may result in the recommendation that this action be 4 dismissed. 5 has not filed an amended petition. Although more than thirty days have passed, petitioner 6 7 Rule 4 provides that [i]f it plainly appears from the petition 8 and any attached exhibits that the petitioner is not entitled to 9 relief in the district court, the judge must dismiss the petition and 10 direct the clerk to notify the petitioner. 28 foll. U.S.C. § 2254, 11 Rule 4. 12 it should be summarily dismissed without prejudice. Since the habeas petition is clearly defective on its face, 13 14 ORDER 15 16 IT IS ORDERED that the habeas petition shall be SUMMARILY DISMISSED without prejudice. 17 18 19 IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal. 20 21 DATE: January 12, 2009 R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE 22 23 PRESENTED BY: 24 DATE: January 8, 2009 25 26 /S/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 27 R&R-MDO\08-1375.mdo 28 1/8/09 3

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