1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 BEAU JAMES DEARBORNE, ) Case No. 8:20-cv-02054-FMO-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY THE ) 13 v. ) PETITION SHOULD NOT BE ) DISMISSED 14 WARREN MONTGOMERY, ) ) 15 Respondent. ) ) 16 17 I. 18 INTRODUCTION 19 On October 21, 2020, the United States District Court for the Southern 20 District of California (“Southern District”) docketed from Petitioner Beau 21 James Dearborne (“Petitioner”) a “Petition Under

for Writ 22 of Habeas Corpus by Person in State Custody,” raising three grounds for relief. 23 See Dkt. 1 (“Petition” or “Pet.”). On October 22, 2020, the Southern District 24 transferred the action to this Court. Dkt. 2. The Court has reviewed the 25 Petition consistent with its authority under Rule 4 of the Rules Governing 26 Section 2254 Cases in the United States District Courts (“Habeas Rules”) and 27 finds that the Petition suffers from at least two defects. The Court therefore 28 orders Petitioner to show cause why this action should not be dismissed. 1 II. 2 PETITIONER’S CLAIMS 3 1. Petitioner cannot be found guilty as an aider and abettor of a 4 forcible sex offense. 5 2. Unconstitutional insufficiency of evidence to support Petitioner’s 6 conviction. 7 3. Trial court failure to instruct jury about evidence. 8 Pet. at 6-9. 9 The “Supporting facts” for each ground are incorporated from the 10 purportedly attached Petition for Review filed with the California Supreme 11 Court. Id. However, the Petition for Review that is attached to the Petition 12 only contains odd-numbered pages. See Pet at 16-34 (CM/ECF pagination). 13 As a result, the Petition does not contain supporting facts for portions of 14 Petitioner’s claims. 15 III. 16 DISCUSSION 17 Under Rule 4 of the Habeas Rules, the Court must review the Petition 18 and, if it plainly appears from the Petition and any attached exhibits that the 19 Petitioner is not entitled to relief, the Court must dismiss the Petition. Here, 20 the Petition appears subject to dismissal for at least two reasons: (1) it does not 21 contain a coherent statement of supporting facts; and (2) Petitioner failed to 22 pay the filing fee. 23 A. Failure to Coherently Allege Supporting Facts 24 First, the Petition does not set forth the facts supporting each ground in a 25 coherent manner. Habeas Rules 2(c)(1)-(c)(3) require a statement of all grounds 26 for relief and the facts supporting each ground. In addition, a habeas petition 27 should state facts that point to a real possibility of constitutional error and 28 show the relationship of the facts to the claim. Habeas Rule 4, Advisory 1 Committee Notes, 1976 Adoption; Mayle v. Felix,

(2005); 2 O'Bremski v. Maass,

(9th Cir. 1990) (quoting Blackledge v. 3 Allison,

, 75 n.7 (1977)). Allegations in a petition that are vague, 4 conclusory, palpably incredible, or unsupported by a statement of specific 5 facts, are insufficient to warrant relief, and are subject to summary dismissal. 6 Jones v. Gomez,

(9th Cir. 1995); James v. Borg,

(9th Cir. 1994). 8 Here, Petitioner purports to “incorporate” his Petition for Review to the 9 California Supreme Court to provide the facts supporting his three claims. 10 However, the copy of the Petition for Review attached only includes odd 11 numbered pages, leaving the claims unsupported by any coherent statement of 12 facts and rendering the Petition subject to dismissal. 13 B. Failure to Pay Filing Fee 14 Second Petitioner did not pay the $5 filing fee for a federal habeas 15 petition (see

(a)) and did not alternatively file an application 16 to proceed without prepayment of the filing fee (“IFP Application”) as 17 required by

. The Clerk is directed to send Petitioner a form 18 IFP Application by a person in custody, which Petitioner is required to prepare 19 in full, and obtain any necessary information and certification from staff at the 20 facility where he is incarcerated if he wishes to proceed without prepayment of 21 the filing fee. 22 IV. 23 ORDER 24 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 25 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 26 days from the date of this Order, why this action should not be dismissed 27 under Habeas Rule 4 for the reasons stated above. Plaintiff may comply with 28 this Order by, within 30 days: (1) preparing and filing a “Notice of Supplement 1 ||to Petition,” bearing the above-case number, that includes a full copy of his 2 || entire Petition for Review to the California Supreme Court; and (2) paying the 3 ||$5 filing fee or submitting a compliant IFP Application. 4 Alternatively, Petitioner may, in addition to either paying the filing fee 5 ||or submitting a compliant IFP Application, file an amended petition within 6 || thirty (30) days of the date of this Order to attempt to cure the above- 7 ||referenced defects. The Clerk is directed to send Petitioner a blank copy of the 8 || Central District habeas petition form for this purpose. The amended petition 9 ||should reflect the same case number, be clearly labeled “First Amended 10 || Petition,” and be filled out completely, including naming the appropriate 11 ||respondent. 12 Petitioner is cautioned that a failure to respond timely in compliance 13 || with this Order may result in this action being dismissed for the foregoing 14 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 15 16 || Dated: October 28, 2020

18 19 ND. EARLY nited States Magistrate Judge 20 21 22 23 24 25 26 27 28