Opinion
No. C 02-4128 WHA (PR)
April 24, 2003
JUDGMENT
Pursuant to the court's order entered today, a judgment of dismissal without prejudice is hereby entered.
DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER OF DISMISSAL
Plaintiff, an inmate at the San Mateo County Jail, has filed a document headed "Petition for a Writ of Certiorari." It appears that he is attempting to contend that the information by which he was charged with the crime for which he is currently incarcerated was not valid. Petitioner also seeks leave to proceed in forma pauperis.
Bills of review (which is what a writ of certiorari is) and bills in the nature of a bill of review have been abolished in the federal district courts, along with many other common-law writs. Fed.R.Civ.P. 60(b). Petitioner's effort to challenge the legality of his incarceration must be brought by way of a petition for a writ of habeas corpus. Because of the potential prejudice to petitioner if this case were treated as a habeas case, it will be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Although it is very difficult to ascertain the exact basis for petitioner's claims, it appears his main contention is that the information by which he was charged was not signed or otherwise was defective in formalities. Unless this amounted to a violation of due process, this would be only a state law claim, which is not a basis for federal habeas relief. To amount to a violation of due process, a charging instrument must be alleged to fail to give fair notice of the crime with which the defendant is charged. An information is not constitutionally defective if it states "the elements of an offense charged with sufficient clarity to appraise a defendant of what to defend against," Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.) (quotingRussell v. United States, 369 U.S. 749, 763-64 (1962)), amended, 768 F.2d 1090 (9th Cir. 1985). It does not appear that the formal defects of which petitioner complains amount to a failure to give fair notice.See Novarro v. Pitchess 368 F.2d 803 , 803-04 (9th Cir. 1966) (violation of California requirement that complaint charging vehicle code violation be signed by arresting officer presents no federal question); In re Cardwell, 256 F.2d 576, 577 (9th Cir. 1957) (failure of grand jury foreman to sign indictment presents no federal question; only when no crime charged on face of indictment may habeas court inquire into its validity).
CONCLUSION
Leave to proceed in forma pauperis (doc 3) is DENIED. No fee is due. For the foregoing reasons, petitioner's claims are DISMISSED without prejudice.
The Clerk shall close the file.
IT IS SO ORDERED.