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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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FERNANDO LOPEZ,

Case No. 16-cv-7390-NJV (PR)

Petitioner,
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ORDER FOR RESPONDENT TO SHOW
CAUSE

v.
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WARDEN RON DAVIS,

Dkt. No. 2

United States District Court
Northern District of California

Respondent.
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner was found guilty of a prison rule violation while incarcerated at

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San Quentin State Prison, so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner has also

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applied for leave to proceed in forma pauperis and consented to the jurisdiction of a Magistrate

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Judge. Petition at 7.
BACKGROUND

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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

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Standard of Review

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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 in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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Legal Claims

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As grounds for federal habeas relief, petitioner asserts that there was insufficient evidence

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to find him guilty of the charged offense and the legal standard for guilt was not correctly noticed

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in the charges. Liberally construed, this claim is sufficient to require a response.

United States District Court
Northern District of California

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CONCLUSION

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1. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED.

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2. 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 serve a

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copy of this order on petitioner.

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

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

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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

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4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as

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set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases.

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If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If

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a motion is filed, petitioner shall file with the court and serve on respondent an opposition or
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statement of non-opposition within twenty-eight (28) days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of

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receipt of any opposition.

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5. 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 must keep

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the court informed of any change of address and must comply with the court's orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: January 25, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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