Dunn v. Covello

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEYLEN M. DUNN, Case No. 21-cv-09036-RMI

8 Petitioner, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND

10 PATRICK COVELLO, Respondent. 11

12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 14 to 28 U.S.C. § 2254. He also paid the filing fee and consented to the jurisdiction of a Magistrate 15 Judge. (dkts. 4, 7.) 16 BACKGROUND 17 Petitioner was convicted after a jury trial of second-degree murder with a knife and second 18 degree robbery. People v. Dunn, A155981, 2021 WL 973386, at *1 (Cal. Ct. App. Mar. 16, 2021). 19 The California Court of Appeal affirmed the judgment. Id. at *1. The California Supreme Court 20 denied review. (dkt. 1 at 3.) 21 DISCUSSION 22 Standard of Review 23 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 24 custody pursuant to the judgment of a State court only on the ground that he is in custody in 25 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 26 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 27 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 1 must “specify all the grounds for relief available to the petitioner . . . [and] state the facts 2 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 3 “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real 4 possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 5 431 F.2d 688, 689 (1st Cir. 1970)). 6 Legal Claims 7 As grounds for federal habeas relief, Petitioner alleges that: (1) the trial court erred by 8 denying his motion for diversion from prison with mental health services pursuant to a new 9 California law; and (2) the trial court failed to instruct on lesser included offenses. However, 10 Petitioner also includes fourteen handwritten pages, though it is not clear if these are additional 11 claims or support for the two claims above. He also includes his petition to the California Supreme 12 Court that includes six claims. Ultimately, it is not clear what claims Petitioner seeks to present in 13 this federal petition. The petition is dismissed with leave to amend. 14 In an amended petition, Petitioner must set forth on one page each claim in a numbered list 15 such that his claims can be readily identified. Then he may provide further discussion of the 16 claims in subsequent pages. Petitioner can only proceed with claims that have been exhausted by 17 being presented to the California Supreme Court. Petitioner is also informed that the first claim 18 regarding the denial of the motion for diversion fails to state a federal claim. Habeas relief is not 19 available for an alleged state law error. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a 20 federal habeas court cannot reexamine a state court's interpretation and application of state law). 21 Petitioner should not include this claim in an amended petition. 22 CONCLUSION 23 1. The petition is DISMISSED with leave to amend in accordance with the standards 24 set forth above. The amended petition must be filed within twenty-eight (28) days of the date this 25 order is served and must include the caption and civil case number used in this order and the 26 words AMENDED PETITION on the first page. Failure to amend within the designated time 27 will result in the dismissal of these claims. 1 with the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 2 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 3 Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 4 IT IS SO ORDERED. 5 Dated: March 25, 2022 6 7 R@BERT M. ILLMAN 8 United States Magistrate Judge 9 10 11 a 12

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