Jorge Gonzalez Hernandez v. Jeff Macomber, Secretary, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a First Amended Petition for a Writ of Habeas Corpus filed by a pro se state prisoner that failed to clearly identify any specific constitutional claims or allege exhaustion of state remedies. The court dismissed the petition without prejudice and granted the petitioner until September 18, 2026, to file a Second Amended Petition that properly identifies claims and exhaustion.
| What the court decided | The model |
|---|---|
Dismissal of the First Amended Petition without prejudice“Because Petitioner has not invoked this Court’s jurisdiction with respect to his habeas challenge under 28 U.S.C. § 2254 and has not adequately alleged exhaustion of state court remedies, the First Amended Petition (ECF No. 8) is DISMISSED without prejudice.” | agree with court The order recites that the petition contains only the placeholder text 'Claim for Relief' and 'Attack,' making it impossible to determine what constitutional violations are alleged or whether they were exhausted in state court. Under 28 U.S.C. § 2254(a), a petitioner must be in custody in violation of the Constitution or laws of the United States to invoke habeas jurisdiction. Because the petition fails to articulate any specific claim, it fails to meet this threshold requirement. Additionally, the failure to allege exhaustion triggers the mandatory dismissal rule under Rose v. Lundy. Dismissing without prejudice is the appropriate procedural remedy for a facially deficient pro se petition that can be cured by amendment. |
The order itself: sound — The order correctly identifies that the petition is facially deficient because it fails to articulate any specific constitutional claim, which is a prerequisite for invoking habeas jurisdiction under 28 U.S.C. § 2254(a). It also correctly applies the mandatory exhaustion doctrine from Rose v. Lundy, noting that the petitioner has not alleged exhaustion. The court appropriately cites Rule 4 to support summary dismissal of a petition that plainly fails to state a claim for relief. The decision to dismiss without prejudice and allow amendment is consistent with the liberal construction afforded to pro se litigants and the procedural posture of the case.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE GONZALEZ HERNANDEZ, Case No.: 26-CV-1154 JLS (BJW)
12 Petitioner, ORDER DISMISSING FIRST 13 v. AMENDED PETITION WITHOUT PREJUDICE 14 JEFF MACOMBER, Secretary, et al., 15 (ECF No. 8) Respondents. 16 17 18 On February 8, 2026, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a Motion to 20 Substitute Respondents, but failed to pay the $5.00 filing fee or submit a request to proceed 21 in forma pauperis. ECF Nos. 1–2. On March 2, 2026, the Court granted Petitioner’s 22 Motion to Substitute Respondents and dismissed this action without prejudice for failing 23 to satisfy the filing fee requirement and for failure to use a court-approved petition form. 24 ECF No. 3. Petitioner has now paid the filing fee twice and filed a First Amended Petition 25 on a court-approved petition form. ECF Nos. 4, 8, 10. 26 However, the only claim presented in the First Amended Petition states in full: 27 “Claim for Relief.” ECF No. 8 at 11. The section listing supporting facts states in full: 28 “Attack” with an arrow pointing to the right side of the petition form. Id. Although 1 Petitioner checks the box indicating that he has presented this claim to the California 2 Supreme Court, he has left blank the portion of the form requesting identification regarding 3 the nature of that filing. See id. There are numerous documents attached to the First 4 Amended Petition, including what appear to be state court filings challenging Petitioner’s 5 conviction, but due to his failure to properly fill out the petition form, it is impossible to 6 determine which if any of those claims Petitioner intends to pursue in this action and if 7 they have been presented to the state supreme court. 8 Accordingly, Petitioner has not invoked the Court’s habeas jurisdiction because his 9 failure to clearly present a claim for relief amounts to a failure to claim he is in custody in 10 violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. 11 § 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 12 entertain an application for a writ of habeas corpus on behalf of a person in custody 13 pursuant to the judgment of a State court only on the ground that he is in custody in 14 violation of the Constitution or laws or treaties of the United States.”) 15 In addition, it is unclear whether Petitioner has alleged exhaustion of state court 16 remedies as to any claims he wishes to present. Generally, applications for writs of habeas 17 corpus which contain unexhausted claims must be dismissed. Rose v. Lundy, 455 U.S. 509, 18 522 (1982). The exhaustion requirement is satisfied by providing the state courts with a 19 “fair opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless, 459 20 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s 21 highest court, either on direct appeal or through state collateral proceedings. See Sandgathe 22 v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal 23 proceedings must be the same as that raised in the state proceedings. Id. 24 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 25 habeas petition “[i]f it plainly appears from the face of the petition and any attached 26 exhibits that the petitioner is not entitled to relief in the district court.” R. 4, Rules 27 Governing Section 2254 Cases (2019). Here, it is plain from the First Amended Petition 28 that Petitioner is not presently entitled to federal habeas relief because he has not alleged 1 || he is in custody in violation of the Constitution or laws or treaties of the United States and 2 || has not alleged exhaustion of state court remedies. 3 CONCLUSION 4 Because Petitioner has not invoked this Court’s jurisdiction with respect to his 5 ||habeas challenge under 28 U.S.C. § 2254 and has not adequately alleged exhaustion of 6 || state court remedies, the First Amended Petition (ECF No. 8) is DISMISSED without 7 ||prejudice. If Petitioner wishes to pursue this action, he must file a Second Amended 8 || Petition on a court-approved form on or before September 18, 2026, in which he clearly 9 ||identifies the claim or claims he wishes to raise in this action and alleges exhaustion of 10 || state court remedies as to those claim(s). The Clerk of Court will send a blank Southern 11 || District of California amended 28 U.S.C. § 2254 petition form to Petitioner along with a 12 || copy of this Order. 13 IT IS SO ORDERED. 14 || Dated: August 6, 2026 16 on. Janis L. Sammartino United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28