(HC) Hernandez v. Trate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAIRO JOAQUIN HERNANDEZ, Case No. 1:22-cv-01115-EPG-HC 9 Petitioner, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS WITHOUT 10 v. PREJUDICE B.M. TRATE, (ECF No. 2) 12 Respondent.

ORDER GRANTING PETITIONER LEAVE 13 TO AMEND ORDER DIRECTING CLERK OF COURT 15 TO SEND PETITIONER BLANK § 2241 AND IN FORMA PAUPERIS FORMS 17 Petitioner Jairo Joaquin Hernandez is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

19 I.

20 DISCUSSION 21 A. Motion to Proceed In Forma Pauperis 22 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” A prisoner seeking to bring a civil action must, in addition to filing an affidavit, “submit a certified copy of the trust fund account statement . . . for the 6-month period immediately preceding the filing of the complaint . . .

27 obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

1 Here, Petitioner’s motion was made on a form for leave to appeal in forma pauperis pursuant to Federal Rule of Appellate Procedure 24(a)(1). (ECF No. 2.) That is not the correct form as Petitioner is not pursuing an appeal. Moreover, Petitioner has not submitted a financial affidavit that demonstrates he is unable to pay the $5.00 filing fee to commence this action or a certified copy of the trust account statement for the six-month period immediately preceding the filing of the petition. Accordingly, the Court will deny Petitioner’s motion to proceed in forma pauperis without prejudice and provide Petitioner the opportunity to renew his motion and submit a financial affidavit and trust account statement.

9 B. Leave to Amend Petition 10 The Rules Governing Section 2254 Cases1 (“Habeas Rules”) require preliminary review of a habeas petition and allow a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.

15 Habeas Rule 2(c) states that a petition must “(1) specify all the grounds for relief available to the petitioner; [and] (2) state the facts supporting each ground.” Petitioner must state his claims with sufficient specificity. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Hendricks v. Vasquez, 908 F.2d 490, 491–92 (9th Cir. 1990). “A prime purpose of Rule 2(c)’s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to ‘show cause why the writ should not be granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. § 2243).

22 In his sole claim for relief, Petitioner asserts that he is actually innocent of 18 U.S.C. § 924(c)(1)(A)(iii) and (c)(3)(B). In support of this claim, Petitioner states: “Petitioner plead[ed] guilty to count 6 +7 18 U.S.C. § 924(c)(1)(A)(iii) and 924(j) and received a consecutive 10 years under residual clause of 924(c)(3)(B).” (ECF No. 1 at 3.)2 To support his claim, Petitioner cites to United States v. Davis, 139 S. Ct. 2319 (2019). (ECF No. 1 at 4.) Davis held that 18 U.S.C. The Court may apply any or all of these rules to habeas corpus petitions that are not brought under 28 U.S.C. § 2254. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.

1 | § of 924(c)(3)(B) is unconstitutionally vague. Davis, 139 S. Ct. at 2336. However, Petitioner has | not provided the Court with sufficient facts—e.g., the factual basis and the “crime of violence” | that supported his guilty plea to violations of 18 U.S.C. § 924(c)(1)(A) Gil) and 9244) to enable | the Court to determine whether Davis is applicable and Respondent “should be ordered to ‘show | cause why the writ should not be granted.’” Mayle, 545 U.S. at 656 (quoting 28 U.S.C. § 2243).

6 | Therefore, the Court will grant Petitioner an opportunity to file an amended petition. See Jarvis | v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (“It may be that [the petitioner’s] conclusory | averments cannot be factually supported, but a petition for writ of habeas corpus should not be | dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded | were such leave granted.”).

11 II.

12 ORDER 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is DENIED WITHOUT 15 PREJUDICE; 16 2. Petitioner is GRANTED leave to file a first amended petition within THIRTY (30) days 17 of the date of service of this order; and 18 3. The Clerk of Court is DIRECTED to send Petitioner blank § 2241 habeas forms and a 19 blank application to proceed in forma pauperis.

IT IS SO ORDERED.

22| Dated: _ September 13, 2022 [spe ey 3 UNITED STATES MAGISTRATE JUDGE