Diaz v. Curry

Filing 7

ORDER TO SHOW CAUSE. Show Cause Response due by 11/27/2006. Signed by Judge Charles R. Breyer on September 26, 2006. (crblc2, COURT STAFF) (Filed on 9/26/2006)

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Diaz v. Curry Doc. 7 Case 3:06-cv-05686-CRB Document 7 Filed 09/26/2006 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 H E C T O R DIAZ, Petitioner, v. B E N CURRY, Warden Res pon dent. / N o . C 06-05686 CRB ORDER 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 2254. Petitioner pled guilty to a charge of murder in the Superior Court of San Mateo County. Accordingly, venue is pro per . See Local Rule 2254-3. T h i s Court may entertain a petition for a writ of habeas corpus "in behalf of a person i n custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); R o s e 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 Dockets.Justia.com Case 3:06-cv-05686-CRB Document 7 Filed 09/26/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 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, 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 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 : September 26, 2006 20 21 22 23 24 25 26 27 28 2 CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE G:\ CRBALL\ 2006\5686\ OSC. wpd

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