Collins v. Carey

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Charles R. Breyer on August 16, 2005. (crblc1, COURT STAFF) (Filed on 8/16/2005) Additional attachment(s) added on 8/16/2005 (be, COURT STAFF).

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Collins v. Carey Doc. 2 Case 3:05-cv-03303-CRB Document 2 Filed 08/16/2005 Page 1 of 2 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 11 12 For the Northern District of California F L O Y D COLLINS, P e t i ti o n e r v. T H O M A S L. CAREY, Res pon dent. / N o . C 05-3303 CRB O R D E R TO SHOW CAUSE 13 14 15 16 P e t i ti o n e r , who is in the custody of the California Department of Corrections, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2254. Petitioner was co nv ict ed of first degree murder after a jury trial in San Francisco County. Accordingly, ven ue is proper. See Local Rule 2254-3. 17 18 19 20 This Court may entertain a petition for a writ of habeas corpus "in behalf of a person 21 i n custody pursuant to the judgment of a State court only on the ground that he is in custody 22 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); 23 R o s e v. Hodges, 423 U.S. 19, 21 (1975). 24 A district court shall "award the writ or issue an order directing the respondent to 25 s h o w cause why the writ should not be granted, unless it appears from the application that the 26 a p p l i ca n t or person detained is not entitled thereto." 28 U.S.C. 2243. Summary dismissal 27 is appropriate only where the allegations in the petition are vague or conclusory, palpably 28 incr edib le, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. Case 3:05-cv-03303-CRB Document 2 Filed 08/16/2005 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 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, 1. T h e Clerk of the Court shall serve by certified mail a copy of this Order a n d the petition and all attachments thereto upon the respondents and the respondents' 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 s 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 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a traverse with the court and serving it upon the respondents within thirty (30) days of his rece ipt of the answer. IT IS SO ORDERED. D a t e d : August 16, 2005 CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE G:\CRBALL\2005\3303\ordertoshowcause.wpd 2

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