Federico Moreno Martinez v. Unknown
5:20-cv-02312
C.D. Cal.
Nov 23, 2020
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Federico Moreno Martinez v. Unknown

Case No. 5:20-cv-2312-VAP (SK)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

November 23, 2020

The Honorable Steve Kim, U.S. Magistrate Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Steve Kim, U.S. Magistrate Judge

Erica Valencian/a
Deputy ClerkCourt Smart / Recorder
Attorneys Present for Petitioner:Attorneys Present for Respondent:
None presentNone present

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE

Petitioner is a California state prisoner seeking relief under 28 U.S.C. § 2254 from a conviction sustained in San Bernardino County Superior Court. But the petition is deficient on its face for many reasons. First, the petition is not written in English as required by the Court. See Local Rules 3-2, 11-3.10. Second, Petitioner has not named a proper respondent, thereby depriving the Court of jurisdiction. See Rule 2(a) of Rules Governing § 2254 Cases; . Third, Petitioner has left significant portions of the petition blank. A petition is facially invalid unless it “specif[ies] all the grounds for relief available to the petitioner” and “state[s] the facts supporting each ground.” Rule 2(c) of Rules Governing § 2254 Cases. This requirement is not met by attaching a document to the petition with no explanation. See, e.g., (dismissing with leave to amend where petitionеr attached filings but identified no claims in the petition). Finally, from what remaining content the Court can discern, the petition appears unexhausted. See 28 U.S.C. § 2254(b)(1)(A). To exhaust a federal claim, a California state prisoner must first present it in a complete rоund of direct appeals or state habeas proceedings, up to and including the California Supreme Court. See . Yet neither the petition nor the available state court docket reflects that Petitioner has done this. (See Cal. Ct. App. Case No. E074751).

Petitioner is thus ORDERED TO SHOW CAUSE on or before December 23, 2020 why his petition should not be dismissed for lack of jurisdiction, lack of exhaustion, and failure to comply with both the Federal Rules Governing § 2254 Cases and the Court‘s Local Rules. To discharge this order, Petitioner may (1) file an amended petition using the attached Form CV-69 that fixes these deficiencies; (2) voluntarily dismiss the petition using the attached Form CV-09 and refile after exhausting his federal claims (if any), provided that he has enough time left under the one-year federal statute of limitations; or (3) file a response explaining why thе petition can proceed, as is, without amendment.

Failure to comply with this order may result in involuntary dismissal of the petition for failure to prosecute and obey court orders. See Fed. R. Civ. P. 41(b); L.R. 41-1.

NAME

PRISON IDENTIFICATION/BOOKING NO.

ADDRESS OR PLACE OF CONFINEMENT

Note: It is your responsibility to notify the Clerk of Court in writing of any change оf address. If represented by an attorney, provide his or her name, address, telephone and facsimile numbers, and e-mail address.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

FULL NAME (Include name under which you were convicted)

Petitioner,

v.

NAME OF WARDEN, SUPERINTENDENT, JAILOR, OR AUTHORIZED PERSON HAVING CUSTODY OF PETITIONER

Respondent.

CASE NUMBER:

CV

To be supplied by the Clerk of the United States District Court

☐ __________________ AMENDED

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY 28 U.S.C. § 2254

PLACE/COUNTY OF CONVICTION __________________

PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT (List by case number)

CV __________________

CV __________________

INSTRUCTIONS - PLEASE READ CAREFULLY

  1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief from the conviction and/or the sentence. This form is your petition for rеlief.
  2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge judgments entered by more than one California state court, you must file a separate petition for each court.
  3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
  4. Answer all the questions. You do not need to cite case law, but you do need to state the federаl legal theory and operative facts in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
  5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. You must also state the facts that support each ground. ‍​​​‌‌​​‌‌​‌​‌​‌‌‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​‌​​​‌​‍If you fail to set forth all the grounds in this petition, you may be barred frоm presenting additional grounds at a later date.
  6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out and sign the declaratiоn of the last two pages of the form. Also, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account at the institution. If your prisоn account exceeds $25.00, you must pay the filing fee.
  7. When you have completed the form, send the original and two copies to the following address:

    Clerk of the United States District Court for the Central District of California

    United States Courthouse

    ATTN: Intake/Docket Section

    255 East Temple Street, Suite TS-134

    Los Angeles, California 90012

PLEASE COMPLETE THE FOLLOWING (check appropriate number):

This petition concerns:

  1. ☐ a conviction and/or sentence.
  2. ☐ prison discipline.
  3. ☐ a parole problem.
  4. ☐ other.

PETITION

  1. Venue
    1. Place of detention __________________
    2. Place of conviction and sentence __________________
  2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
    1. Nature of offenses involved (include all counts): __________________
    2. Penal or other code section or sections: __________________
    3. Case number: __________________
    4. Date of conviction: __________________
    5. Date of sentence: __________________
    6. Length of sentence on each count: __________________
    7. Plea (check one):

      ☐ Not guilty

      ☐ Guilty

      ☐ Nolo contendere

    8. Kind of trial (check one):

      ☐ Jury

      ☐ Judge only

  3. Did you appeal to the California Court of Appeal from the judgment of conviction? ☐ Yes ☐ No

    If so, give the follоwing information for your appeal (and attach a copy of the Court of Appeal decision if available):

    1. Case number: __________________
    2. Grounds raised (list each):

      (1) __________________

      (2) __________________

(3) __________________

(4) __________________

(5) __________________

(6) __________________

  1. Date of decision: __________________
  2. Result __________________
  1. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal decision? ☐ Yes ☐ No

    If so, give the following information (and attach copies of the Petition for Review and the Supreme Court ruling if available):

    1. Case number: __________________
    2. Grounds raised (list each):

      (1) __________________

      (2) __________________

      (3) __________________

      (4) __________________

      (5) __________________

      (6) __________________

    3. Date of decision: __________________
    4. Result __________________
  2. If you did not appeal:
    1. State your reasons __________________
    2. Did you seek permission to file a late appeal? ☐ Yes ☐ No
  3. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction? ☐ Yes ☐ No

    If so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and the rulings on the petitions if available):

    1. (1) Name of court: __________________

      (2) Case number: __________________

      (3) Date filed (or if mailed, the date the petition was turned over to the prisоn authorities for mailing): __________________

(4) Grounds raised (list each):

(a) __________________

(b) __________________

(c) __________________

(d) __________________

(e) __________________

(f) __________________

(5) Date of decision: __________________

(6) Result __________________

(7) Was an evidentiary hearing held? ☐ Yes ☐ No

  1. (1) Name of court: __________________

    (2) Case number: __________________

    (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): __________________

    (4) Grounds raised (list each):

    (a) __________________

    (b) __________________

    (c) __________________

    (d) __________________

    (e) __________________

    (f) __________________

    (5) Date of decision: __________________

    (6) Result __________________

    (7) Was an evidentiary hearing held? ☐ Yes ☐ No

  2. (1) Name of court: __________________

    (2) Case number: __________________

    (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): __________________

    (4) Grounds raised (list each):

    (a) __________________

    (b) __________________

    (c) __________________

    (d) __________________

    (e) __________________

    (f) __________________

(5) Date of decision: __________________

(6) Result __________________

(7) Was an evidentiary hearing held? ☐ Yes ☐ No

  1. Did you file a petition for certiorari in the United States Supreme Court? ☐ Yes ☐ No

    If yes, answer the following:

    (1) Docket or case number (if you know): __________________

    (2) Result: __________________

    (3) Date of result (if you know): __________________

    (4) Citation to the case (if you know): __________________

  2. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than five grounds. Summarize briefly the facts suppоrting each ground. For example, if you are claiming ineffective assistance of counsel, ‍​​​‌‌​​‌‌​‌​‌​‌‌‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​‌​​​‌​‍you must state facts specifically setting forth what your attorney did or failed to do.

    CAUTION: Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust your statе court remedies with respect to each ground on which you are requesting relief from the federal court. This means that, prior to seeking relief from the federal court, you first must present all of your grounds to the California Supreme Court.

    1. Ground one: __________________

      (1) Supporting FACTS: __________________

      (2) Did you raise this claim on direct appeal to the California Court of Appeal? ☐ Yes ☐ No

      (3) Did you raise this claim in a Petition for Review to the California Supreme Court? ☐ Yes ☐ No

      (4) Did you raise this claim in a habeas petition to the California Supreme Court? ☐ Yes ☐ No

    2. Ground two: __________________

      (1) Supporting FACTS: __________________

(2) Did you raise this claim on direct appeal to the Cаlifornia Court of Appeal? ☐ Yes ☐ No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court? ☐ Yes ☐ No

(4) Did you raise this claim in a habeas petition to the California Supreme Court? ☐ Yes ☐ No

  1. Ground three: __________________

    (1) Supporting FACTS: __________________

    (2) Did you raise this claim on direct appeal tо the California Court of Appeal? ☐ Yes ☐ No

    (3) Did you raise this claim in a Petition for Review to the California Supreme Court? ☐ Yes ☐ No

    (4) Did you raise this claim in a habeas petition to the California Supreme Court? ☐ Yes ☐ No

  2. Ground four: __________________

    (1) Supporting FACTS: __________________

    (2) Did you raise this claim on direct appeal to the California Court of Appeal? ☐ Yes ☐ No

    (3) Did you raise this claim in a Petition for Review to the California Supreme Court? ☐ Yes ☐ No

    (4) Did you raise this claim in a habeas petition to the California Supreme Court? ☐ Yes ☐ No

  3. Ground five: __________________

    (1) Supporting FACTS: __________________

    (2) Did you raise this claim on direct appeal to the California Court of Appeal? ☐ Yes ☐ No

    (3) Did you raise this claim in a Petition for Review to the California Supreme Court? ☐ Yes ☐ No

    (4) Did you raise this claim in a habeas petition to the California Supreme Court? ☐ Yes ☐ No

  1. If any of the grounds listed in parаgraph 8 were not previously presented to the California Supreme Court, state briefly which grounds were not presented, and give your reasons: __________________
  2. Have you previously filed any habeas petitions in any federal court ‍​​​‌‌​​‌‌​‌​‌​‌‌‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​‌​​​‌​‍with respect to this judgment of conviction? ☐ Yes ☐ No

    If so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and the rulings on the petitions if available):

    1. (1) Name of court: __________________

      (2) Case number: __________________

      (3) Date filed (or if mailed, the date the petition was turnеd over to the prison authorities for mailing): __________________

      (4) Grounds raised (list each):

      (a) __________________

      (b) __________________

      (c) __________________

      (d) __________________

      (e) __________________

      (f) __________________

      (5) Date of decision: __________________

      (6) Result __________________

      (7) Was an evidentiary hearing held? ☐ Yes ☐ No

    2. (1) Name of court: __________________

      (2) Case number: __________________

      (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): __________________

      (4) Grounds raised (list each):

      (a) __________________

      (b) __________________

      (c) __________________

      (d) __________________

      (e) __________________

      (f) __________________

      (5) Date of decision: __________________

(6) Result __________________

(7) Was an evidentiary hearing held? ☐ Yes ☐ No

  1. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect tо this judgment of conviction? ☐ Yes ☐ No

    If so, give the following information (and attach a copy of the petition if available):

    (1) Name of court: __________________

    (2) Case number: __________________

    (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): __________________

    (4) Grounds raised (list each):

    (a) __________________

    (b) __________________

    (c) __________________

    (d) __________________

    (e) __________________

    (f) __________________

  2. Are you presently represented by counsel? ☐ Yes ☐ No

    If so, provide name, address and tеlephone number: __________________

WHEREFORE, petitioner prays that the Court grant petitioner all relief to which he may be entitled in this proceeding.

__________________

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on __________________ Date

__________________

Signature of Petitioner

__________________ PetitionerELECTION REGARDING CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
__________________ Respondent(s)
  • A magistrate judge is available under 28 U.S.C. § 636(c) to conduct all proceedings in this case, including dispositive matters and entry of final judgment. However, a magistrate judge may be assigned to rule on dispositive matters only if all parties voluntarily consent.
  • Parties are free to withhold consent to magistrate judge jurisdiction without advеrse substantive consequences.
  • If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
  • Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to the district judge as to all dispositive matters.

Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge and sign below.

☐ Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment.

☐ No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.

Executed on __________________ Date

__________________

Signature of Petitioner/Counsel for Petitioner

__________________ PetitionerDECLARATION IN SUPPORT OF REQUEST ‍​​​‌‌​​‌‌​‌​‌​‌‌‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​‌​​​‌​‍TO PROCEED IN FORMA PAUPERIS
__________________ Respondent(s)

I, __________________, declare that I am the petitioner in the above entitled case; that in support of my motion to рroceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief.

  1. Are you presently employed? ☐ Yes ☐ No
    1. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your employer. __________________
    2. If the answer is no, state the date of last employment and the amount of the salary and wages per month which you received. __________________
  2. Hаve you received, within the past twelve months, any money from any of the following sources?
    1. Business, profession or form of self-employment? ☐ Yes ☐ No
    2. Rent payments, interest or dividends? ☐ Yes ☐ No
    3. Pensions, annuities or life insurance payments? ☐ Yes ☐ No
    4. Gifts or inheritances? ☐ Yes ☐ No
    5. Any other sources? ☐ Yes ☐ No

    If the answer to any of the above is yes, describe each source of money and state the amount received from each during the past twelve months: __________________

  3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts) ☐ Yes ☐ No

    If the answer is yes, state the total value of the items owned: __________________

  1. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary household furnishings and clothing) ☐ Yes ☐ No

    If the answer is yes, describe the property and state its approximate value: __________________

  2. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support: __________________

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on __________________ Date

__________________

Signature of Petitioner

CERTIFICATE

I hereby certify that the Petitioner herein has the sum of $ __________________ on account to his сredit at the __________________ institution where he is confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said institution: __________________

__________________ Date

__________________

Authorized Officer of Institution/Title of Officer

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

__________________ Plaintiff(s),CASE NUMBER
v.NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)
__________________ Defendant(s).

PLEASE TAKE NOTICE: (Check one)

☐ This action is dismissed by the Plaintiff(s) in its entirety.

☐ The Counterclaim brought by Claimant(s) __________________ is dismissed by Claimant(s) in its entirety.

☐ The Cross-Claim brought by Claimants(s) __________________ is dismissed by the Claimant(s) in its entirety.

☐ The Third-party Claim brought by Claimant(s) __________________ is dismissed by the Claimant(s) in its entirety.

☐ ONLY Defendant(s) __________________ is/are dismissed from (check one) ☐ Complaint, ☐ ‍​​​‌‌​​‌‌​‌​‌​‌‌‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​‌​​​‌​‍Counterclaim, ☐ Cross-claim, ☐ Third-Party Claim brought by __________________.

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

__________________ Date

__________________

Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive pleading or prior to the beginning of trial.

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