Wilson v. Dist Atty's Office, et al

Filing 14

ORDER TO SHOW CAUSE. Signed by Judge Thelton E. Henderson on 04/16/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/17/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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KEVIN JAMES WILSON,

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Petitioner,

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No. C-92-3181 TEH (PR)
ORDER TO SHOW CAUSE

v.
CHARLES D. MARSHALL, Warden,

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Respondent.
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In 1992, Petitioner filed a prisoner complaint which the

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Court construed as a petition for a writ of habeas corpus under 28

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U.S.C. § 2254.

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leave to amend and file a first amended petition for a writ of

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habeas corpus within 30 days.

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of time to file an amended petition by no later than October 26,

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1992.

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Petitioner had not filed an amended petition within the designated

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time and dismissed the case without prejudice.

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December 15, 1992, after the case was closed, Petitioner filed a

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first amended petition.

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Doc. #4.

Doc. #2.

The Court dismissed the complaint with

Id.

Petitioner obtained an extension

On October 30, 1992, the Court noted that

Doc. #7.

Doc. #5.

On

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However, it appears that the Court received a letter from

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Petitioner on November 8, 1992, which was not docketed in the

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above-captioned case.

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1992, the Court informed Petitioner that no amended petition had

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been received and ordered Petitioner to filed an amended petition by

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December 18, 1992.

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docketed in the above-captioned case.

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petition was filed on December 15, 1992, no action was taken since

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the case had been closed on October 30, 1992.

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In response to that letter, on November 18,

The Court's November 18, 1992 letter was not
Accordingly, when the amended

More than ten years later, on January 12, 2005, Petitioner

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requested that the Court take action on the first amended petition.

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Doc. #10.

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pursuant to the extension of time he received from the Court in the

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Court’s letter dated November 18, 1992.

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Petitioner’s request for action on his first amended petition

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without addressing whether the amended petition was timely filed.

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The Court instead noted that Petitioner had stated in the body of

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his habeas petition that the grounds for relief raised therein "were

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never previously presented" to the state courts.

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July 27, 2005, the Court dismissed the petition without prejudice to

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refiling after state judicial remedies are exhausted.

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He claimed that the amended petition was timely filed

The Court denied

Accordingly, on

Doc. #12.

Over four years after that order of dismissal, Petitioner

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has filed a request to reopen this case, stating that he has

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exhausted his state court remedies.

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Petitioner’s motion to reopen, the California Supreme Court denied

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his habeas petition on June 14, 2006.

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Doc. #13.

According to

Petitioner’s request to

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reopen the case was filed four years after he exhausted his state

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remedies.

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The Court finds that Petitioner’s first amended petition

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was timely filed and GRANTS Petitioner’s request to re-open this

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case.

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This Court may entertain a petition for a writ of habeas

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corpus “in behalf of a person in custody pursuant to the judgment of

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a State court only on the ground that he is in custody in violation

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of the Constitution or laws or treaties of the United States.”

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U.S.C. § 2254(a).

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directing the respondent to show cause why the writ should not be

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granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.”

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It shall “award the writ or issue an order

Id. § 2243.

Petitioner seeks federal habeas corpus relief by alleging

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that his sentence (1) constituted cruel and unusual punishment in

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violation of the Eighth Amendment and violated the Ex Post Facto

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Clause; (2) violated his right to equal protection; and (3) violated

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his due process rights.

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appear cognizable under 28 U.S.C. § 2254 and merit an Answer from

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Respondent.

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2001) (federal courts must construe pro se petitions for writs of

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habeas corpus liberally).

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Liberally construed, Petitioner’s claims

See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.

The proper respondent in this action is Greg Lewis, the

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current Warden at Pelican Bay State Prison, where petitioner is

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incarcerated, rather than the originally-named respondent, Charles

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D. Marshall, the former Warden at Pelican Bay State Prison.

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Fed. R. Civ. P. 25(d).

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here is Warden Lewis, the sole person who can produce “the body” of

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the petitioner at this time, deprives federal courts of personal

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jurisdiction.

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1996).

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respondent in this action.

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Failure to name the proper custodian, which

Ortiz-Sandoval v. Gomez, 81 F.3d 891, 896 (9th Cir.

Accordingly, the Clerk shall substitute Greg Lewis as the

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See

II
For the foregoing reasons and for good cause shown,
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The Clerk is directed to re-open this case and to

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serve by certified mail a copy of this Order and the first amended

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Petition, and all attachments thereto (i.e., Doc. #7), on Respondent

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and Respondent’s attorney, the Attorney General of the State of

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California.

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Petitioner.

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The Clerk also shall serve a copy of this Order on

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Respondent shall file with the Court and serve on

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Petitioner, within sixty (60) days of the issuance of this Order, an

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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

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not be granted.

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Petitioner a copy of all portions of the state trial record that

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have been transcribed previously and that are relevant to a

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determination of the issues presented by the Petition.

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Respondent shall file with the Answer and serve on

If Petitioner wishes to respond to the Answer, he shall do

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so by filing a Traverse with the Court and serving it on Respondent

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within thirty (30) days of his receipt of the Answer.

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In lieu of an Answer, Respondent may file a Motion to

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Dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases.

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If Respondent files such a motion, Petitioner shall file with the

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Court and serve on Respondent an Opposition or Statement of

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Non-Opposition within thirty (30) days of receipt of the motion, and

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Respondent shall file with the Court and serve on Petitioner a Reply

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within fifteen (15) days of receipt of any Opposition.

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Petitioner is reminded that all communications with

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the Court must be served on Respondent by mailing a true copy of the

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document to Respondent’s counsel.

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Court and all parties informed of any change of address.

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Petitioner also must keep the

IT IS SO ORDERED.

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DATED

04/16/2012
THELTON E. HENDERSON
United States District Judge

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