Mahrt v. Beard et al

Filing 12

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 8/18/2014.Signed by Magistrate Judge Nandor J. Vadas on 6/17/2014. (njvlc1, COURT STAFF) (Filed on 6/17/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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GREGORY MAHRT,
Petitioner,

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vs.

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ORDER FOR RESPONDENT
TO SHOW CAUSE

JEFFREY A. BEARD, et al.,
Respondent.

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For the Northern District of California

United States District Court

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No. 1:14-CV-1696 NJV

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Petitioner, a California prisoner, filed a petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner was convicted in Sonoma County, which is in this district,

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so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner been granted leave to

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proceed in forma pauperis and has consented to the jurisdiction of a Magistrate Judge.

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Docket Nos. 7 and 8.

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BACKGROUND

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Pursuant to a plea agreement, Petitioner was convicted of being a felon in

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possession of a firearm in violation of Penal Code Section 29800(a)(1), and of being in

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possession of ammunition in violation of Penal code Section 30305(a)(1).

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Petitioner states that he appealed to the Court of Appeal and filed a petition for writ of

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habeas corpus with the California Supreme Court, both of which were denied.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

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For the Northern District of California

United States District Court

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B.

Legal Claims
Petitioner’s ground for federal habeas relief is that he was denied his Sixth

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Amendment right to effective assistance of counsel and was thereby prejudiced. This claim

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is sufficient to require a response.

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CONCLUSION

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1. The clerk shall serve by regular mail a copy of this order, the petition and all

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attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and

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respondent's attorney, the Attorney General of the State of California. The clerk also shall

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serve a copy of this order on petitioner.

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2. Respondent shall file with the court and serve on petitioner, within fifty-six (56)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with

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the court and serving it on respondent within twenty-eight (28) days of his receipt of the

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answer.

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3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the

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date this order is entered. If a motion is filed, petitioner shall file with the court and serve

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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of

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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply

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within fourteen (14) days of receipt of any opposition.

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4. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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must keep the court informed of any change of address and must comply with the court's
orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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For the Northern District of California

United States District Court

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.

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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.

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Dated: June 17, 2014.
NANDOR J. VADAS
United States Magistrate Judge

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