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Braxton v. State

United States District Court, D. Arizona

February 12, 2014

Chad Everett Braxton, Petitioner,
v.
State of Arizona, et al., Respondents.

ORDER

DAVID G. CAMPBELL, District Judge.

On September 16, 2013, Petitioner Chad Everett Braxton, who is confined in the Arizona State Prison Complex-Lewis in Buckeye, Arizona, filed a pro se document titled "Supplemental Brief, " which the Clerk of Court docketed as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, although Petitioner did not use the court-approved form for filing a Petition for Writ of Habeas Corpus and had not paid the $5.00 filing fee or filed an Application to Proceed In Forma Pauperis. In an Order dated November 4, 2013, the Court informed Petitioner that it would construe his Supplemental Brief as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, dismissed Petitioner's Supplemental Brief without prejudice, and granted Petitioner 30 days to file an amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis.

On December 9, 2013, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Amended Petition") (Doc. 8) and paid the $5.00 filing fee. The Court will dismiss the Amended Petition with leave to amend.

I. Amended Petition

Petitioner was convicted in Maricopa County Superior Court, case CR2010-006318-001 DT, of trafficking stolen property, and was sentenced to a five-year term of imprisonment. In his Amended Petition, Petitioner names Anna Rodriguez as Respondent and the Arizona Attorney General as an Additional Respondent.

Petitioner raises two grounds for relief. In Ground One, Petitioner alleges that the trial court erred in allowing evidence "that was not in a police report or any document co[n]cerning the case whatsoever in during opening argu[]ments were sent to com[m]ence (untimely) according to the Arizona Rules of Crim. Pro. and Arizona Rules of Evid." In Ground Two, Petitioner alleges that the trial court erred "when defense expert witness Brian Nuemeister could not testify that appellants face was not a match for the face in video tape presented at trial. Said Mr. Nuemeister was underqualifed."

II. Failure to Allege Constitutional Violation in Each Ground

Federal habeas relief is available "only on the ground that [an inmate] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under Rule 2(c) of the Rules Governing Section 2254 Cases, a § 2254 petition must state all grounds for relief that may be available to the petitioner, the particular federal right allegedly violated, the facts supporting each ground, and the relief requested.

Petitioner fails to allege the particular federal constitutional right violated in each ground of his Amended Petition. In Ground One, Petitioner alleges violations of state law only. State law violations are not grounds for relief in a federal habeas petition. In Ground Two, Petitioner fails to allege the federal constitutional right allegedly violated.

Because Petitioner fails to allege the particular federal constitutional right violated in each ground of his Amended Petition, the Amended Petition will be dismissed with leave to amend. In a second amended petition, Petitioner should specifically allege in each ground the particular federal constitutional right allegedly violated and facts to support his ground.

III. Leave to Amend

For the foregoing reasons, the Amended Petition will be dismissed with leave to file a second amended petition within 30 days. In a second amended petition, Petitioner must allege the particular federal constitutional right violated for each ground. The Clerk of Court will mail Petitioner a court-approved form for filing a second amended petition by a pro se petitioner.

Petitioner must clearly designate on the face of the document that it is the "Second Amended Petition" and he must include the case number in the caption. The second amended petition must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original or Amended Petition by reference.

IV. Warnings

A. Address Changes

Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Petitioner must serve Respondents, or counsel if an appearance has been entered, a copy of every document that he files. Fed.R.Civ.P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed.R.Civ.P. 5(d). Also, Petitioner must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Petitioner.

C. Possible Dismissal

If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) The Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 8) is dismissed for failure to allege the particular federal constitutional right violated in each ground. Petitioner has 30 days from the filing date of this Order to file a second amended petition in compliance with this Order. Petitioner must clearly designate on the face of the document that it is the "Second Amended Petition."

(2) If Petitioner fails to file a second amended petition within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action.

(3) The Clerk of Court must mail Petitioner a court-approved form for filing a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)."


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