United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
In this action under 28 U.S.C. § 2254, respondents have filed a motion to dismiss the petition for writ of habeas filed by Darren Roy Mack, a prisoner in custody at Ely State Prison. ECF No. 42. As the bases for their motion, respondents contend that the petition lacks proper verification and that Mack failed to exhaust state court remedies before seeking habeas relief in federal court. Mack has not filed a response to the motion.
1. Proper Verification
An application for a writ of habeas corpus must be "verified by the person for whose relief it is intended or by someone acting in his behalf." 28 U.S.C. § 2242. Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter Habeas Corpus Rules) provides:
(c) Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
Rule 2(c), Habeas Corpus Rules (emphasis added). A habeas petitioner's attorney can sign and verify the petition for the petitioner. Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir. 1996). In the absence of evidence to the contrary, there is a presumption that a petitioner has been fully informed of, and has consented to, claims raised in the petition. Deutscher v. Angelone, 16 F.3d 981, 984 (9th Cir.1994).
Here, attorney Richard Cornell verified the petition on Mack's behalf. ECF No. 1, p. 41-42. In addition, Mack signed an authorization indicating that Cornell was permitted execute the verification of the petition on Mack's behalf. Id., p. 43. Even so, respondents argue the verification is not valid because this court disqualified Cornell as counsel due a conflict of interest between Mack and Cornell. Accordingly, respondents ask the court to give Mack the option of either dismissing the existing petition without prejudice and filing a "properly verified amended petition" or filing a "proper verification" adopting the contents of the existing petition.
This court does not view either option as necessary. To the extent there is a defect in the verification of Mack's current petition, it is one this court "may, if it sees fit, disregard." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.1990). Cornell's verification states that he reviewed the petition with Mack over phone and made changes that Mack requested. In addition, Mack is undoubtedly familiar with the contents of the petition and has not lodged any objection or sought to amend the petition. Thus, requiring ...