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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 KEVIN JAMES WILSON, 12 Petitioner, 13 14 No. C-92-3181 TEH (PR) ORDER TO SHOW CAUSE v. CHARLES D. MARSHALL, Warden, 15 Respondent. / 16 17 In 1992, Petitioner filed a prisoner complaint which the 18 Court construed as a petition for a writ of habeas corpus under 28 19 U.S.C. § 2254. 20 leave to amend and file a first amended petition for a writ of 21 habeas corpus within 30 days. 22 of time to file an amended petition by no later than October 26, 23 1992. 24 Petitioner had not filed an amended petition within the designated 25 time and dismissed the case without prejudice. 26 December 15, 1992, after the case was closed, Petitioner filed a 27 first amended petition. 28 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 1 However, it appears that the Court received a letter from 2 Petitioner on November 8, 1992, which was not docketed in the 3 above-captioned case. 4 1992, the Court informed Petitioner that no amended petition had 5 been received and ordered Petitioner to filed an amended petition by 6 December 18, 1992. 7 docketed in the above-captioned case. 8 petition was filed on December 15, 1992, no action was taken since 9 the case had been closed on October 30, 1992. 10 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 11 requested that the Court take action on the first amended petition. 12 Doc. #10. 13 pursuant to the extension of time he received from the Court in the 14 Court’s letter dated November 18, 1992. 15 Petitioner’s request for action on his first amended petition 16 without addressing whether the amended petition was timely filed. 17 The Court instead noted that Petitioner had stated in the body of 18 his habeas petition that the grounds for relief raised therein "were 19 never previously presented" to the state courts. 20 July 27, 2005, the Court dismissed the petition without prejudice to 21 refiling after state judicial remedies are exhausted. 22 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 23 has filed a request to reopen this case, stating that he has 24 exhausted his state court remedies. 25 Petitioner’s motion to reopen, the California Supreme Court denied 26 his habeas petition on June 14, 2006. 27 28 2 Doc. #13. According to Petitioner’s request to 1 reopen the case was filed four years after he exhausted his state 2 remedies. 3 The Court finds that Petitioner’s first amended petition 4 was timely filed and GRANTS Petitioner’s request to re-open this 5 case. 6 7 I This Court may entertain a petition for a writ of habeas 8 corpus “in behalf of a person in custody pursuant to the judgment of 9 a State court only on the ground that he is in custody in violation 10 of the Constitution or laws or treaties of the United States.” 11 U.S.C. § 2254(a). 12 directing the respondent to show cause why the writ should not be 13 granted, unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” 15 28 It shall “award the writ or issue an order Id. § 2243. Petitioner seeks federal habeas corpus relief by alleging 16 that his sentence (1) constituted cruel and unusual punishment in 17 violation of the Eighth Amendment and violated the Ex Post Facto 18 Clause; (2) violated his right to equal protection; and (3) violated 19 his due process rights. 20 appear cognizable under 28 U.S.C. § 2254 and merit an Answer from 21 Respondent. 22 2001) (federal courts must construe pro se petitions for writs of 23 habeas corpus liberally). 24 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 25 current Warden at Pelican Bay State Prison, where petitioner is 26 incarcerated, rather than the originally-named respondent, Charles 27 28 3 1 D. Marshall, the former Warden at Pelican Bay State Prison. 2 Fed. R. Civ. P. 25(d). 3 here is Warden Lewis, the sole person who can produce “the body” of 4 the petitioner at this time, deprives federal courts of personal 5 jurisdiction. 6 1996). 7 respondent in this action. 10 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 8 9 See II For the foregoing reasons and for good cause shown, 1. The Clerk is directed to re-open this case and to 11 serve by certified mail a copy of this Order and the first amended 12 Petition, and all attachments thereto (i.e., Doc. #7), on Respondent 13 and Respondent’s attorney, the Attorney General of the State of 14 California. 15 Petitioner. 16 The Clerk also shall serve a copy of this Order on 2. Respondent shall file with the Court and serve on 17 Petitioner, within sixty (60) days of the issuance of this Order, an 18 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 20 not be granted. 21 Petitioner a copy of all portions of the state trial record that 22 have been transcribed previously and that are relevant to a 23 determination of the issues presented by the Petition. 24 Respondent shall file with the Answer and serve on If Petitioner wishes to respond to the Answer, he shall do 25 so by filing a Traverse with the Court and serving it on Respondent 26 within thirty (30) days of his receipt of the Answer. 27 28 4 1 3. In lieu of an Answer, Respondent may file a Motion to 2 Dismiss on procedural grounds, as set forth in the Advisory 3 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 4 If Respondent files such a motion, Petitioner shall file with the 5 Court and serve on Respondent an Opposition or Statement of 6 Non-Opposition within thirty (30) days of receipt of the motion, and 7 Respondent shall file with the Court and serve on Petitioner a Reply 8 within fifteen (15) days of receipt of any Opposition. 9 4. Petitioner is reminded that all communications with 10 the Court must be served on Respondent by mailing a true copy of the 11 document to Respondent’s counsel. 12 Court and all parties informed of any change of address. 13 Petitioner also must keep the IT IS SO ORDERED. 14 15 16 DATED 04/16/2012 THELTON E. HENDERSON United States District Judge 17 18 19 20 21 G:\PRO-SE\TEH\OLD FILES\Wilson-92-3181 reopen1.wpd 22 23 24 25 26 27 28 5

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