Daryol Derrick Richmond v. Christian Pfeiffer

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 DARYOL DERRICK RICHMOND, ) NO. CV 19-8163-JGB(E) ) 12 Petitioner, ) ) 13 v. ) ORDER DISMISSING PETITION WITH ) 14 CHRISTIAN PFEIFFER, Warden, ) LEAVE TO AMEND ) 15 Respondent. ) ______________________________) [17] 18 BACKGROUND [19] 20 On August 2, 2019, Petitioner filed an “Application for Leave to 21 File Second or Successive Petition, etc.” in the United States Court 22 of Appeals for the Ninth Circuit. The Application appeared to relate 23 to Petitioner’s state court conviction for attempted robbery. See 24 People v. Richmond, 2014 WL 6694790 (Cal. App. Nov. 26, 2014). [25] 26 On September 19, 2019, the Ninth Circuit transferred the 27 Application to this Court as an original habeas corpus petition 28 (“Petition”), based on the Circuit’s observation that it appeared 1 Petitioner previously had not filed any habeas corpus petition in the 2 District Court. The Ninth Circuit ordered that the Petition be deemed 3 filed in this Court on July 26, 2019, the date the document had been 4 delivered to prison authorities for forwarding to the Ninth Circuit. 5 The Ninth Circuit stated it was expressing no opinion regarding the 6 merits of Petitioner’s claims or whether Petitioner had satisfied “the 7 procedural requirements of 28 U.S.C. §§ 2244 (d) and 2254.” [8] 9 The allegations in the Petition are sparse and confused. In the 10 section of the form instructing Petitioner to state the grounds for 11 habeas relief and to summarize supporting facts, Petitioner states: 12 “Ineffective assistance of counsel; miscarriage of justice; 14th 13 amend., enhancements are no longer lawful” (Petition, p. 3). In the 14 section of the form asking whether any claim relies on a new rule of 15 constitutional law, Petitioner states: “Yes. § 1170(d); 1170.18(a); 16 1170.18(f); § 667,” apparently referencing California sentencing 17 statutes (id., p. 4). In the section of the form asking whether any 18 claim relies on newly discovered evidence and, if so, what the 19 evidence was, when Petitioner discovered it and why the evidence was 20 not previously available to Petitioner, Petitioner states: “The 21 witness did not actually pick me in a photo lineup as one of the 22 perpetrator[s]” (id.). Petitioner answers “yes” to the question 23 asking, with respect to each ground, whether any purported newly 24 discovered evidence establishes Petitioner’s asserted innocence (id.). 25 In response to the question asking whether the purported newly 26 discovered evidence establishes a federal constitutional error and, if 27 so, what constitutional provision assertedly was violated, Petitioner 28 responds: “Yes, miscarriage of justice; six[th] amendment; fourteenth 1 amendment” (id.). In the section of the form asking Petitioner to 2 provide any other basis for the application not previously stated, 3 Petitioner states: “Senate Bill 1392; Senate Bill 1393; Senate Bill 4 1279” (id.).1 [5] 6 DISCUSSION [7] 8 The present Petition is largely unintelligible. Petitioner’s use 9 of a Ninth Circuit form designed as an application to file a second or 10 successive habeas petition may be part of the problem. In any event, 11 the Petition fails to state any facts demonstrating a “violation of 12 the Constitution, laws or treaties of the United States,” as required 13 for federal habeas relief. See 28 U.S.C. §2254 (a); Pulley v. Harris, [14] 465 U.S. 37, 41 (1984). For similar reasons, the Petition violates 15 the Rules Governing Section 2254 Cases in the United States District 16 Courts. See Rule 2(c), Rules Governing Section 2254 Cases in the 17 United States District Courts (petition must “specify all the grounds 18 for relief available to the petitioner . . . [and] . . . state the 19 facts supporting each ground”); see also Blackledge v. Allison, 431 20 U.S. 63 , 75 n.7 (1977) (summary disposition of habeas petition 21 appropriate where allegations are vague; “the petition is expected to 22 state facts that point to a real possibility of constitutional error”) [23] 24 1 “Effective January 1, 2019, section 1385 [of the California Penal Code] was amended [by Senate Bill 1393] to 25 eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667 [of the 26 California Penal Code]. The result is courts now have discretion to strike a five-year enhancement.” People v. Dearborne, 34 Cal. 27 App. 5th 250, 268, 246 Cal. Rptr. 3d 63 (2019). “The amendment applies retroactively to all cases not final on its effective 28 date.” Id. It appears that the other two bills to which 1 (citation, internal quotations and brackets omitted); Jones v. Gomez, [2] 66 F.3d 199, 204-05 (9th Cir. 1995), cert. denied, 517 U.S. 1143 3 (1996) (conclusory allegations unsupported by a statement of specific 4 facts do not warrant habeas relief); Mihailoviki v. State of Cal., 364 5 F.2d 808, 809 (9th Cir. 1966) (affirming dismissal of petition which, 6 inter alia, contained unintelligible and conclusory allegations); 7 Ellis v. Cullen, 2011 WL 249495 , *2-3 (N.D. Cal. Jan. 26, 2011) (“The 8 petition does not provide enough information for the court to 9 determine whether some of the allegations state cognizable claims for 10 relief. That same lack of information means that the petition would 11 not give respondent fair notice of [petitioner’s] claims, such that he 12 could prepare a meaningful response”); Hines v. Napolitano, 2007 WL 13 2859745 (S.D. Cal. Sept. 26, 2007) (dismissing petition which 14 contained “unintelligible allegations without any specific federal 15 constitutional grounds for relief”; court need not “engage in a 16 tenuous analysis in order to attempt to identify and make sense of the 17 Petition”). [18] 19 The Petition also violates Rule 8 of the Federal Rules of Civil 20 Procedure. Rule 8 requires that a pleading contain “a short and plain 21 statement of the claim showing that the pleader is entitled to 22 relief.” The Petition in this case is not plain. Rather, the 23 Petition is so vague as to leave wholly uncertain the nature of 24 Petitioner’s claims. [25] 26 Finally, the Petition is not in proper form. Under Local Rule 27 83-16.1, a petition for writ of habeas corpus “shall be submitted on 28 the forms approved and supplied by the Court.” See McClinton v. 1 California, 2016 WL 7223266 , at *1 (C.D. Cal. Nov. 4, 2016), adopted, [2] 2016 WL 7239480 (C.D. Cal. Dec. 13, 2016) (petition deficient for, 3 among other things, failure to use the correct form required by this 4 Court). [5] 6 ORDER [7] 8 For all of the foregoing reasons, the Petition is dismissed with 9 leave to amend. If Petitioner intends to pursue federal habeas corpus 10 relief at this time, Petitioner shall file a First Amended Petition 11 that utilizes the approved form, a copy of which is attached hereto. 12 The First Amended Petition shall be complete in itself. It shall not 13 refer in any manner to the original Petition. In other words, 14 Petitioner must start over when preparing the First Amended Petition. 15 The First Amended Petition shall contain a short and plain statement 16 of the grounds for relief and the supporting facts. Failure to file a 17 First Amended Petition within twenty-eight (28) days of the date of 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1] this Order may result in the dismissal of this action for failure to prosecute. [3] 4 DATED: October 2, 2019 5 LY 6 SAr[ SUS G. BERNAL 7 UNITED STATES DISTRICT JUDGE [8] 9] PRESENTED this 26th day of 10] September, 2019, by: [11] 12 [sf CHARLES F. EICK 13] UNITED STATES MAGISTRATE JUDGE