(HC) Selck v. County of Sacramento

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 MORREY SELCK, No. 2:21-CV-1499-DAD-DMC-P 12 Petitioner, 13 v. ORDER 14 COUNTY OF SACRAMENTO, 15 Respondent. [16] 17 Petitioner, who is proceeding pro se, brings this petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 . The matter has been referred to the undersigned pursuant to 19 the District Judge’s November 10, 2022, order dismissing Petitioner’s first amended petition and 20 designating the second amended petition at ECF No. 26 as the operative petition. 21 A review of the second amended pleading reveals that it suffers from a number of 22 defects. First, it does not name the proper respondent. “A petitioner for habeas corpus relief 23 must name the state officer having custody of him or her as the respondent to the petition.” 24 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Rule 2(a), 25 Federal Rules Governing Section 2254 Cases. Here, Petitioner does not name any custodial 26 officer but instead improperly names only the County of Sacramento. 27 / / / 28 / / / 1 Second, the second amended petition does not comply with Rule 2(c) of the 2 Federal Rules Governing Section 2254 Cases. Allegations which are unsupported by a statement 3 of specific facts do not warrant federal habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 4 1994). Moreover, “[f]ederal courts are authorized to dismiss summarily any habeas petition that 5 appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). Thus, in 6 order to satisfy Rule 2(c), facts must be stated, in the petition, with sufficient detail to enable the 7 Court to determine, from the face of the petition, whether further habeas corpus review is 8 warranted.” Frasier v. Hernandez, 2007 WL 1300063 , *3 (S.D. Cal. Apr. 30, 2007). Here, as with 9 the first amended petition, the second amended petition does not contain a statement of specific 10 facts to allow the Court to determine whether he has stated a cognizable claim for federal habeas 11 relief. 12 Finally, also as with the first amended petition, the second amended petition 13 continues to appear to challenge more than one conviction. Rule 2(e) of the Federal Rules 14 Governing Section 2254 Cases permits a petition to only challenge a single judgment. Under 15 Rule 2(e), petitioners seeking relief from judgments of more than one state court must file a 16 separate petition covering the judgment or judgments of each court. See Dickey v. Davis, 231 F. 17 Supp. 3d 634, 728 (E.D. Cal. 2017). The second amended petition continues to reference to 18 separate state court cases – Sacramento County Superior Court case nos. 17FE06221 and 17 19 FE2343. 20 Petitioner will be provided an opportunity to amend. Petitioner is cautioned that 21 failure to file a third amended petition within the time permitted therefor may result in dismissal 22 of the entire action for lack of prosecution and failure to comply with Court rules and orders. See 23 Local Rule 110. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Petitioner’s second amended petition, ECF No. 26, is dismissed with leave 3 | to amend; 4 2. Petitioner shall file a third amended petition on the form provided within 5 || 30 days of the date of this order; and 6 3. The Clerk of the Court is directed to forward to Petitioner the court’s form 7 || habeas corpus petition. [8] 9 | Dated: December 15, 2022 Svc 10 DENNIS M. COTA 11 UNITED STATES MAGISTRATE JUDGE