(HC) Castro v. Cisneros

Opinion

SALVADOR ALEXANDER CASTRO, Case No. 2:22-cv-00201-JDP (HC) Petitioner, ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE CLAIM v. UNDER SECTION 2254 AND GRANTING LEAVE TO AMEND WITHIN THIRTY Respondent. ECF No. 1 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that it cannot proceed because petitioner has failed to identify his claims and to state whether he has exhausted state remedies. The amended petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the petition and order a response to it unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Petitioner is challenging convictions for murder and assault with a deadly weapon. ECF No. 1 at 1. He states that he appealed his convictions and that, in February 2021, the convictions were affirmed and also remanded for an additional hearing. Id. at 2. I cannot tell from this whether his convictions have been finalized. Additionally, petitioner does not state whether he exhausted any claims by presenting them to the California Supreme Court. Finally, the petition does not explicitly state what claims are at issue because the claims sections of the federal habeas form have been left blank. Petitioner did attach state court records to his petition, but I decline to make assumptions based on their content. Plaintiff may, within thirty days, file an amended petition that remedies these deficiencies. It is ORDERED that: 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is GRANTED. 2. Petitioner may file an amended § 2254 petition within thirty days of this order’s entry. If he does not, I will recommend that the current petition be dismissed for the reasons stated in this order. 3. The Clerk of Court is directed to send petitioner a federal habeas form. ( ie — Dated: _ March 28, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE