(HC) Duenas v. Allen

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 GUSTAVO ADOLFO DUENAS, Case No. 1:24-cv-00335-SAB-HC

12 Petitioner, ORDER GRANTING PETITIONER LEAVE TO FILE THIRD AMENDED PETITION 13 v. 14 TRENT ALLEN, 15 Respondent.

16 17 Petitioner, represented by counsel, is a state prisoner proceeding with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On March 20, 2024, Petitioner commenced the instant action by filing a petition for writ 22 of habeas corpus. (ECF No. 1.) On April 8, 2024, the Court ordered Petitioner to show cause 23 why the petition should not be dismissed because Grounds Two through Five were unexhausted. 24 (ECF No. 6.) In lieu of filing a response to the order to show cause, Petitioner filed a first 25 amended petition (“FAP”) raising only an insufficiency of the evidence claim, which had been 26 exhausted. (ECF No. 7.) 27 On June 7, 2024, the Court granted Petitioner leave to file a second amended petition (“SAP”) because in support of the sole claim for relief, the FAP merely stated, “The evidence 1 presented at Trial was insufficient to support Defendant’s conviction of Second Degree Murder 2 of either Victim,” (ECF No. 7 at 51), and was otherwise devoid of any factual allegations. (ECF 3 No. 8.) On July 9, 2024, Petitioner filed the SAP. (ECF No. 11.) 4 II. 5 DISCUSSION 6 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 7 of a habeas petition and allow a district court to dismiss a petition before the respondent is 8 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 10 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 11 Habeas Rule 2(c) states that a petition must “(1) specify all the grounds for relief 12 available to the petitioner; [and] (2) state the facts supporting each ground.” Petitioner must state 13 his claims with sufficient specificity. See McFarland v. Scott, 512 U.S. 849, 856 (1994); 14 Hendricks v. Vasquez, 908 F.2d 490, 491–92 (9th Cir. 1990). “A prime purpose of Rule 2(c)’s 15 demand that habeas petitioners plead with particularity is to assist the district court in 16 determining whether the State should be ordered to ‘show cause why the writ should not be 17 granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. § 2243). 18 In his sole claim for relief, Petitioner asserts a claim of “Insufficiency of Evidence to 19 Support the Verdict.” (ECF No. 11 at 6.) In support of this claim, the SAP merely states: “The 20 evidence presented at Trial was insufficient to support Defendant’s conviction of Second Degree 21 Murder of either Victim.” (Id.) This portion of the SAP is identical to the corresponding portion 22 of the FAP that the Court previously found did not comply with Habeas Rule 2. The only 23 difference with the SAP is that additional arguments and factual allegations have been added 24 regarding the insufficient evidence claim that was raised on direct appeal to the California Court 25 of Appeal. (ECF No. 11 at 2–3.) However, additional factual allegations regarding the claim that 26 was raised on direct appeal to the state court does not remedy the deficiency the Court previously 27 identified—i.e., the lack of factual support for the claim that Petitioner now raises in the instant 1 | federal petition. The SAP is devoid of any factual allegations to support Ground One. (ECF No. 2 | 11 at 6.) “The relaxed pleading standard we afford pro se litigants does not apply to counseled 3 | filings.” Young v. Hawaii, 992 F.3d 765, 780 (9th Cir. 2021), vacated on other grounds, 142 S. 4 | Ct. 2895, 213 L. Ed. 2d 1108 (2022). See Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) 5 | (‘More generally, the Court has held pro se pleadings to a less stringent standard than briefs by 6 | counsel and reads pro se pleadings generously, ‘however inartfully pleaded.’” (quoting Haines v. 7 | Kerner, 404 U.S. 519, 520 (1972) (per curiam))). 8 The Court will grant Petitioner one final opportunity to amend the petition to address the 9 | deficiency identified above. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (“It may be 10 | that [the petitioner’s] conclusory averments cannot be factually supported, but a petition for writ 11 | of habeas corpus should not be dismissed without leave to amend unless it appears that no 12 | tenable claim for relief can be pleaded were such leave granted.”). Petitioner is forewarned that 13 | failure to adequately address the deficiency in the amended petition will result in a 14 | recommendation that this action be dismissed. 15 Il. 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that Petitioner is GRANTED leave to file a 18 | third amended petition within THIRTY (30) days of the date of service of this order. 19 IT IS SO ORDERED. OF. nf ee 21 | Dated: _July 9, 2024 _ OO UNITED STATES MAGISTRATE JUDGE

23 24 25 26 27 28