Walmsley v. Marshall

Filing 4

ORDER to show cause and appointing counsel. Signed by Judge Charles R. Breyer on April 27, 2005. (crblc1, COURT STAFF) (Filed on 4/29/2005) Additional attachment(s) added on 4/29/2005 (be, COURT STAFF).

Walmsley v. Marshall

Doc. 4

Case 3:05-cv-01693-CRB

Document 4

Filed 04/29/2005

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1 2 3 4 5 6 7 8 9 10 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA

U n it e d United States District Court

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For the Northern District of California

D A N I EL EARL WALMSLEY, Petitioner, v. J O H N MARSHALL, Res pon dent. /

N o . C 3:05-cv-01693 CRB O R D E R TO SHOW CAUSE AND A P P O I N T IN G COUNSEL

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N o w pending before the Court is Daniel Earl Walmsley's petition for habeas corpus, filed April 25, 2005. This Court may entertain a petition for a writ of habeas corpus "in b e h a l f of a person in custody pursuant to the judgment of a State court only on the ground t h a t he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to s h o w cause why the writ should not be granted, unless it appears from the application that the a p p l i ca n t or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incr edib le, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1 9 9 0 ) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). The Court has reviewed the petition and finds good cause to proceed. Accordingly,

Dockets.Justia.com

Case 3:05-cv-01693-CRB

Document 4

Filed 04/29/2005

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1.

T h e Clerk of the Court shall serve by certified mail a copy of this Order

and the petition and all attachments thereto upon the respondent and the respondent's c o u n s e l , the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on the petitioner's counsel. 2. R esp o n d e n t shall file with this Court and serve upon the petitioner,

with in sixty (60) days of the issuance of this Order, an answer conforming in all respects to R u l e 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas c o r p u s should not be issued. Respondent shall file with the answer a copy of all portions of t h e state trial and appellate record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 3. I f the petitioner wishes to respond to the answer, he shall do so by filing

United States District Court

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For the Northern District of California

a traverse with the court and serving it upon the respondents within thirty (30) days of his rece ipt of the answer. 4. Petition er's motion for appointment of Maryam S. Karson pursuant to

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1 8 U.S.C. § 3006(a)(2)(B) is GRANTED. I T IS SO ORDERED. /s/ CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE

D a t e d : April 27, 2005

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