Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 5:07-cv-05133-RMW

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N:\CM-PDF Forms\small.lta.wpd IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHNNY L. SMALL, Petitioner, vs. M.S. EVANS, Respondent.

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C 07-5133 MJJ (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 4)

Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. BACKGROUND In 2002, petitioner was convicted of multiple offenses and sentence enhancements in Santa Clara County Superior Court. The California Court of Appeal affirmed the conviction and sentence, and the Supreme Court of California denied the petition for review. DISCUSSION A. Standard of Review This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

Case 5:07-cv-05133-RMW

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B.

Legal Claims Petitioner makes the following claims: (1) "Court Errer [sic]"; (2) "Sufficiency of

Evidence"; and (3) "Sufficiency of Evidence." These claims are not cognizable because
petitioner does not allege any violation of federal law, as is required for federal habeas relief. Rose

v. Hodges, 423 U.S. 19, 21 (1975). With each of his claims, petitioner references an "attached State Writ of Habeas Corpus", but no briefs, petitions, writs or any other documentation is attached to the petition. Consequently, petitioner has not adequately explained the basis for his claims, nor has he set forth the federal law he claims has been violated. Petitioner will be given leave to amend to explain the basis for his claims and to allege, if he can do so in good faith, a basis in federal law for these claims. The court cautions that if petitioner chooses to so amend, the court will not be able to consider the claims unless petitioner has previously presented the federal basis for the claims to the California Supreme Court; otherwise, the claims have not been properly exhausted. CONCLUSION For the foregoing reasons, the Court hereby orders: 1. The petition is DISMISSED with leave to amend. Within 30 days of the date

this order is filed, petitioner must amend this petition as to correct the deficiencies noted above in these claims. Petitioner's amended petition shall be filed on the Court's form for habeas petitions, and the exhibits shall be clearly labeled and numbered in an orderly manner. See Fed. R. Civ. P. 8(e) (all pleadings must be simple, concise and direct). The amended petition must include the caption and civil case number used in this order (No. C 06-2494 MJJ (PR)) and the words AMENDED PETITION on the first page. Petitioner must include in the amended petition all the claims he wishes to present; he may not incorporate material from the original petition by reference. 2. Failure to timely file an amended petition in conformity with this order

shall result in the dismissal of this action. 3. It is petitioner's responsibility to prosecute this case. Petitioner must keep the

Court and respondent informed of any change of address and must comply with the Court's
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orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) or Local Rule 3-11. The application to proceed in forma pauperis is GRANTED in light of petitioner's lack of funds. This order terminates docket number 4. IT IS SO ORDERED. DATED: 10/25/07 MARTIN J. JENKINS United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHNNY L. SMALL, Plaintiff, v. MS. EVANS et al, Defendant. /

Case Number: CV07-05133 MJJ CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 26, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Johnny L. Small J - 44318 P.O. Box. 1050 Soledad, CA 93960-1050

Dated: October 26, 2007 Richard W. Wieking, Clerk By: R.B. Espinosa, Deputy Clerk