Watson v. Martinez

Filing 4

ORDER TO SHOW CAUSE, Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Michael A. Watson. 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 MICHAEL WATSON, Case No. 17-cv-0100-NJV (PR) Petitioner, 9 ORDER FOR RESPONDENT TO SHOW CAUSE v. 10 11 Dkt. No. 2 JOE MARTINEZ, 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 convicted in Contra Costa County, so venue is proper here. 16 See 28 U.S.C. § 2241(d). Petitioner has also applied for leave to proceed in forma pauperis and 17 consented to the jurisdiction of a Magistrate Judge. BACKGROUND 18 19 Petitioner was convicted of four counts of lewd and lascivious acts on a child under the age 20 of fourteen. Petition at 2. He was sentenced to 175 year to life in state prison. Petition at 1. He 21 states his appeals were denied. Petition at 2-3 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 Petitioner’s sole ground for federal habeas relief in that there was insufficient evidence to 9 support his convictions. CONCLUSION 11 United States District Court Northern District of California 10 1. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED. 12 2. The clerk shall serve by regular mail a copy of this order, the petition and all 13 attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and 14 respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a 15 copy of this order on petitioner. 16 3. Respondent shall file with the court and serve on petitioner, within fifty-six (56) days of 17 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 18 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 19 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 20 trial record that have been transcribed previously and that are relevant to a determination of the 21 issues presented by the petition. 22 23 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. 24 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as 25 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 26 If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If 27 a motion is filed, petitioner shall file with the court and serve on respondent an opposition or 28 statement of non-opposition within twenty-eight (28) days of receipt of the motion, and 2 1 respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of 2 receipt of any opposition. 3 5. Petitioner is reminded that all communications with the court must be served on 4 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 5 the court informed of any change of address and must comply with the court's orders in a timely 6 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 7 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 8 1997) (Rule 41(b) applicable in habeas cases). 9 10 IT IS SO ORDERED. Dated: January 25, 2017 ________________________ NANDOR J. VADAS United States Magistrate Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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