Lopez v. Davis

Filing 3

ORDER TO SHOW CAUSE, Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Fernando Lopez. Habeas Answer or Dispositive Motion due by 3/27/2017. Signed by Judge Nandor J. Vadas on 1/25/2017. (njvlc1, COURT STAFF) (Filed on 1/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISON 7 8 FERNANDO LOPEZ, Case No. 16-cv-7390-NJV (PR) Petitioner, 9 ORDER FOR RESPONDENT TO SHOW CAUSE v. 10 11 WARDEN RON DAVIS, Dkt. No. 2 United States District Court Northern District of California Respondent. 12 13 14 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 15 to 28 U.S.C. § 2254. Petitioner was found guilty of a prison rule violation while incarcerated at 16 San Quentin State Prison, so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner has also 17 applied for leave to proceed in forma pauperis and consented to the jurisdiction of a Magistrate 18 Judge. Petition at 7. BACKGROUND 19 20 21 Petitioner was found in possession of a cell phone and assessed a 90 day loss off credits. Petition at 5, 34. His petition to the California Supreme Court was denied. Id. at 9. DISCUSSION 22 23 Standard of Review 24 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 27 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 28 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 1 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 2 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 3 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ 4 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 5 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 6 688, 689 (1st Cir. 1970)). 7 Legal Claims 8 As grounds for federal habeas relief, petitioner asserts that there was insufficient evidence 9 to find him guilty of the charged offense and the legal standard for guilt was not correctly noticed 10 in the charges. Liberally construed, this claim is sufficient to require a response. United States District Court Northern District of California 11 CONCLUSION 12 1. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED. 13 2. The clerk shall serve by regular mail a copy of this order, the petition and all 14 attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and 15 respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a 16 copy of this order on petitioner. 17 3. Respondent shall file with the court and serve on petitioner, within fifty-six (56) days of 18 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 19 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 20 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 21 trial record that have been transcribed previously and that are relevant to a determination of the 22 issues presented by the petition. 23 24 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 25 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as 26 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 27 If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If 28 a motion is filed, petitioner shall file with the court and serve on respondent an opposition or 2 1 statement of non-opposition within twenty-eight (28) days of receipt of the motion, and 2 respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of 3 receipt of any opposition. 4 5. Petitioner is reminded that all communications with the court must be served on 5 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 6 the court informed of any change of address and must comply with the court's orders in a timely 7 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 8 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 9 1997) (Rule 41(b) applicable in habeas cases). 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: January 25, 2017 ________________________ NANDOR J. VADAS United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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