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)

Diaz v. Curry

Doc. 7

Case 3:06-cv-05686-CRB

Document 7

Filed 09/26/2006

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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

H E C T O R DIAZ, Petitioner, v. B E N CURRY, Warden Res pon dent. /

N o . C 06-05686 CRB ORDER

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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

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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

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For the Northern District of California

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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

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