(HC) Hatchett v. Clark

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CECIL JEROME HATCHETT, No. 2:20-cv-02044 GGH P 12 Petitioner, 13 v. ORDER KEN CLARK, Warden, 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

22 Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.” Advisory Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977).

2 In its current state, the habeas petition is unintelligible. The claim or claims petitioner is seeking to raise are neither clear nor do they provide sufficient information to determine whether federal habeas relief is available or appropriate. Although petitioner provides phrases intermixed within his pleadings that may merit habeas relief such as “actual innocence” or “cruel and unusual punishment,” they are compounded with incoherent factual support. Accordingly, petitioner will be provided an opportunity to file an amended petition.

8 The petition fails to comply with Rule 2(c), Rules Governing Section 2254 Cases.

9 Therefore, the petition is dismissed with leave to amend. Rule 4, Rules Governing Section 2254 Cases. In the amended petition, petitioner must set forth each claim for relief and summarize the facts he alleges support each of the identified claims.

12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s failure to comply with this order will result in the dismissal of this action; 16 2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order;1 18 3. Any amended petition must bear the case number assigned to this action and the title “Amended Petition”; and 20 4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district and the court’s form application for writ of habeas corpus.

22 Dated: October 27, 2020 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE By setting this deadline the court is making no finding or representation that the petition is not subject to dismissal as untimely.