1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | SCOTT KAHALA KING, Case No. 5:19-cv-01924-CAS-JC Potton, | MMAR vr

V. LEAVE TO AMEND

UNITED STATES OF AMERICA,

16 Respondent. 17 18 On October 8, 2019, petitioner Scott Kahala King, who appears to be 19 || detained at the West Valley Detention Center in connection with state parole 20 || violation proceedings and is proceeding pro se, filed a Petition for Writ of Habeas 21 } Corpus (“Petition”) with multiple miscellaneous attachments. As the Petition is 22 | deficient in at least the following respects, it is dismissed with leave to amend.' 23 First, the Petition has not been submitted on either the national form 24 || appended to the current Habeas Rules or the form currently approved by the Central

26 'Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 77 || (Habeas Rules”) requires a judge promptly to examine a federal habeas petition, and to dismiss it if “it plainly appears from the petition and any attached exhibits that the petitioner is not 28 |] entitled to relief in the district court... .”

1 | District of California for habeas petitions. See Local Rule 83-16; Rule 2(d) of the 2 || Habeas Rules. It is important to utilize the approved form, because, among other 3 || reasons, the approved form calls for specific information regarding whether 4 || individual claims have been presented to and resolved by the California Supreme, 5 || i.e., whether they have been exhausted, as discussed further below. 6 Second, the Petition improperly names the United States of America as a 7 || Respondent. Cf. Morehead v. State of California, 339 F.2d 170, 171 (9th Cir. 1964) 8 || (State of California incorrectly named as respondent). An appropriate respondent 9 || is petitioner's immediate custodian (i.e., the warden at the facility where he is 10 || currently housed). See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also 28 11 } U.S.C. § 2242; Rule 2(a) of the Habeas Rules and the Advisory Committee Notes 12 || thereto. The failure to name the correct respondent destroys personal jurisdiction. 13 | See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). 14 Third, the Petition does not clearly specify its ground(s) for relief, and the 15 || facts supporting the ground(s) are largely incomprehensible. See Rule 2(c) of the 16 || Habeas Rules. As best as the Court can determine, petitioner appears to challenge 17 || a 2006 conviction because it was allegedly based on “insignificant evidence of 18 || facts” (Ground One) and suggests that he is entitled to “Keheya support” because he 19 || is “Keheya pro se” (Ground Two). Given the attachments to the Petition which 20 || appear to pertain to pending parole violation proceedings, it may be that petitioner 21 || intends to challenge his arrest and detention since September 25, 2019 for an 22 || alleged parole violation. See Attachment to Petition (Probable Cause 23 || Determination form for the arrest). Rule 2(c) of the Habeas Rules requires that a 24 | petition: (1) specify all grounds of relief available to the petitioner; (2) state the 25 || facts supporting each ground; and (3) state the relief requested. The petition must 26 || state facts that point to a real possibility of constitutional error. See Blackledge v. 27 || Allison, 431 U.S. 63, 75 n. 7 (1977) (summary disposition of habeas petition 28 || appropriate where allegations are vague or conclusory; “the petition 1s expected to

1 || state facts that point to a real possibility of constitutional error’) (citation and 2 || quotation omitted). The facts currently alleged in the Petition are largely 3 || incomprehensible and do not point to a real possibility of constitutional error. 4 Fourth, pursuant to 28 U.S.C. § 2254(b)(1), habeas relief may not be granted 5 || unless a petitioner has exhausted the remedies available in the state courts.” 6 || Exhaustion requires that the petitioner’s contentions were fairly presented to the 7 || state courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), cert. denied, 8 | 568 U.S. 959 (2012), and disposed of on the merits by the highest court of the state, 9 || Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). As a matter of comity, a 10 || federal court will not entertain a habeas petition unless the petitioner has exhausted 11 || the available state judicial remedies on every ground presented in it. See Rose v. 12 | Lundy, 455 U.S. 509, 518 (1982). Petitioner has the burden of demonstrating he 13 || has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 14 } 1253, 1254 (9th Cir. 1972) (per curiam); Rollins v. Superior Court, 706 F. Supp. 2d 15 } 1008, 1011 (C.D. Cal. 2010). In this case, the Petition does not reflect that 16 || petitioner’s claim(s) have been presented to and resolved by the California Supreme 17 | Court, and the Court cannot discern from the Petition whether any ground petitioner 18 | may intend to assert has been presented to and resolved by the California Supreme 19 || Court as required. 20 /// 21 22 | /// 23 /// 24 | /// 25 26 °A habeas petition “shall not be granted unless it appears that — [§] (A) the applicant has 27 || exhausted the remedies available in the courts of the State; or [§] (B)(i) there is an absence of available state corrective process; or [4] (11) circumstances exist that render such process 28 | ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).

1 In light of the foregoing, IT IS HEREBY ORDERED: 2 1. The Petition is dismissed with leave to amend.? 3 2. If petitioner wishes to pursue this action, he shall file a First Amended 4 || Petition correcting the above-referenced errors within fourteen (14) days of the date 5 || of this Order. The First Amended Petition shall name a proper respondent, reflect 6 || the same case number, be clearly labeled “First Amended Petition,” be filled out 7 || completely, and be complete in itself. In other words, petitioner may not 8 || incorporate by reference the original Petition or its attachments. He must clearly 9 || identify the state court case number of the judgment which is being challenged. He 10 || must also clearly state each ground for relief with supporting facts and specify 11 || whether it was raised in state court, and if so, the name of the court in which the 12 || claim was raised, the case number, the date filed, the date decided, and the result. 13 3. In the event petitioner elects not to proceed with this action, he shall 14 || sign and return the attached Notice of Dismissal by the foregoing deadline which 15 || will result in the voluntary dismissal of this action without prejudice.’ 16 4. Petitioner is cautioned that the failure timely to file a First 17 | Amended Petition in conformity with this Order or a Notice of Dismissal may 18 | result in the dismissal of this action based upon the above-referenced 19 || deficiencies in the Petition, petitioner’s failure to obey the Court’s order, 20 || and/or petitioner’s failure to prosecute. See Fed. R. Civ. P. 41(b); Link v. 21 || Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also Pagtalunan v. Galaza, 22 23 *By affording leave to amend, the Court makes no finding as to whether the Petition or 24 || any First Amended Petition is timely or subject to dismissal as untimely. 25 “Dismissal of the present proceeding (even without prejudice) might contribute toward a statute of limitations bar against a federal petition subsequently filed by petitioner. Although 28 U.S.C. § 2244(d)(2) tolls the statute of limitations during the pendency of “a properly filed 27 || application for State post-conviction or other collateral review with respect to the pertinent .. . claim,” the statute of limitations probably has not/would not be tolled during the pendency of 28 || these federal proceedings. See Duncan v. Walker, 533 U.S. 167, 180-81 (2001).

1 | 291 F.3d 639, 640, 642-43 (9th Cir. 2002) (district court may dismiss habeas 2 || petition for failure to obey court order or failure to prosecute), cert. denied, 3 | 538 U.S. 909 (2003). 4 IT IS SO ORDERED. 5 | DATED: November 5, 2019 6

7 Ata fd jf ae 8 HONORABLE CHRISTINA A. BNYDER 9 SENIOR UNITED STATES DISTRICT JUDGE

10 || Attachments 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

SCOTT KAHALA KING,

5:19-cv-01924-CAS-JC Plaintiff(s), v.

NOTICE OF DISMISSAL PURSUANT

UNITED STATES OF AMERICA,

TO FEDERAL RULES OF CIVIL

PROCEDURE 41(a) or (c) Defendant(s). PLEASE TAKE NOTICE: (Check one) ✔ G This action is dismissed by the Plaintiff(s) in its entirety. G The Counterclaim brought by Claimant(s) is dismissed by Claimant(s) in its entirety. G The Cross-Claim brought by Claimants(s) is dismissed by the Claimant(s) in its entirety. G The Third-party Claim brought by Claimant(s) is dismissed by the Claimant(s) in its entirety. G ONLY Defendant(s) is/are dismissed from (check one) G Complaint, G Counterclaim, G Cross-claim, G 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

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 of 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

CASE NUMBER:

CV To be supplied by the Clerk of the United States District Court FULL NAME (Include name under which you were convicted ) Petitioner, v.

G __________________ AMENDED

PETITION FOR WRIT OF HABEAS CORPUS

BY A PERSON IN STATE CUSTODY

28 U.S.C. § 2254

NAME OF WARDEN, SUPERINTENDENT, JAILOR, OR AUTHORIZED

PERSON HAVING CUSTODY OF PETITIONER

Respondent. 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 relief. 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 federal 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 from 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 declaration 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 prison 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 T1.his p eat ictoionnv iccotniocne rannsd:/or sentence. 2. prison discipline. 3. a parole problem. 4. other.

PETITION

1. Venue a. Place of detention b. Place of conviction and sentence 2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked). a. Nature of offenses involved (include all counts) : b. Penal or other code section or sections:

c. Case number: d. Date of conviction: e. Date of sentence: f. Length of sentence on each count: g. Plea (check one): Not guilty Guilty Nolo contendere h. 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 following information for your appeal (and attach a copy of the Court of Appeal decision if available): a. Case number: b. Grounds raised (list each): (1) (5) (6) c. Date of decision: d. Result

4. 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): a. Case number: b. Grounds raised (list each): (1) (2) (3) (4) (5) (6) c. Date of decision: d. Result 5. If you did not appeal: a. State your reasons

b. Did you seek permission to file a late appeal? Yes No 6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction? G Yes G 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): a. (1) Name of court: (2) Case number: (b) (c) (d) (e) (f) (5) Date of decision: (6) Result (7) Was an evidentiary hearing held? Yes No b. (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 c. (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) (7) Was an evidentiary hearing held? Yes No

7. 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): 8. 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 supporting 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 state 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. a. 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 b. Ground two:

(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 c. Ground three:

(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 d. 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 e. Ground five: (1) Supporting FACTS: 9. If any of the grounds listed in paragraph 8 were not previously presented to the California Supreme Court, state briefly which grounds were not presented, and give your reasons:

10. 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): a. (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 b. (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) (7) Was an evidentiary hearing held? Yes No

11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to 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) 12. Are you presently represented by counsel? Yes No If so, provide name, address and telephone 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 Petitioner

Respondent(s) ELECTION REGARDING

CONSENT TO PROCEED BEFORE

A UNITED STATES MAGISTRATE JUDGE

• 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 adverse 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 Petitioner

DECLARATION IN SUPPORT

OF REQUEST

TO PROCEED

Respondent(s) IN FORMA PAUPERIS I, , declare that I am the petitioner in the above entitled case; that in support of my motion to proceed 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 a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your employer. b. 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. Have you received, within the past twelve months, any money from any of the following sources? a. Business, profession or form of self-employment? Yes No b. Rent payments, interest or dividends? Yes No c. Pensions, annuities or life insurance payments? Yes No d. Gifts or inheritances? Yes No e. 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) No 4. 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:

5. 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 credit 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