DEBORAH BARNES, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Before the court is petitioner's first amended petition and motion to proceed in forma pauperis ("IFP"). For the reasons set for the below, this court will grant petitioner's request to proceed IFP, dismiss the petition, and provide petitioner another opportunity to amend the petition.
Petitioner initiated this action in 2015 by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Therein, petitioner challenged his 2008 conviction and sentence rendered by the Sacramento County Superior Court. At that time, petitioner acknowledged that his petition was untimely but sought equitable tolling based on his mental impairment.
On screening, the previously assigned Magistrate Judge found the petition failed to state a cognizable habeas claim. Petitioner was provided an opportunity to amend his petition. In addition, petitioner was given an opportunity to move for equitable tolling of the statute of limitations based on his mental health. Finally, petitioner was instructed to file a fully completed application to proceed IFP. (ECF No. 8.)
On March 28, 2016, petitioner filed over 600 pages of medical records in response to the court's order. (ECF No. 9.) On May 2, 2016, petitioner filed an amended petition. (ECF No. 10.) On May 9, petitioner filed an application to proceed IFP. (ECF No. 11.)
APPLICATION TO PROCEED IFP
Examination of the affidavit accompanying petitioner's motion to proceed IFP reveals he is unable to afford the costs of this action. Accordingly, leave to proceed IFP is granted. 28 U.S.C. § 1915(a).
I. Legal Standards
The court is required to screen all actions brought by prisoners who seek any form of relief, including habeas relief, from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally "frivolous or malicious" or fail to state a basis on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). This means the court must dismiss a habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]" Rule 4 Governing Section 2254 Cases.
Rule 11 of the Rules Governing Section 2254 Cases provides that "[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." Drawing on the Federal Rules of Civil Procedure, when considering whether a petition presents a claim upon which habeas relief can be granted, the court must accept the allegations of the petition as true,
Rule 2(c) of the Rules Governing § 2254 Cases requires every habeas petition to (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. Although, as stated above, pro se petitions receive less scrutiny for precision than those drafted by lawyers, a petitioner must give fair notice of his claims by stating the factual and legal elements of each claim in a short, plain, and succinct manner.
Petitioner does not include any claims for relief in his amended petition. (
Even if the court could look to petitioner's original petition, petitioner was advised previously that his original petition did not state cognizable claims for relief. Habeas relief under 28 U.S.C. § 2254 is available only on the ground that petitioner is in custody in violation of the Constitution or laws or treaties of the United States.
In addition, petitioner should look to the petition for review filed in the California Supreme Court. Petitioner may only raise claims in this court that he previously raised before the California Supreme Court.
Until petitioner has filed a habeas petition in which he alleges at least one claim that is cognizable under 28 U.S.C. § 2254, this court will not proceed to consider whether petitioner is entitled to equitable tolling of the statute of limitations.
For the foregoing reasons, IT IS HEREBY ORDERED as follows: