Elias v. Ayers

Filing 3

ORDER TO SHOW CAUSE. Signed by Judge Thelton E. Henderson on 01/08/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 1/9/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. ROBERT L. AYERS, JR., Warden, Respondent. / OSVALDO ELIAS, Petitioner, No. C 08-2798 TEH (PR) ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner, a California state inmate incarcerated at San Quentin State Prison in San Quentin, California, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the August 7, 2007 decision of the California Board of Parole Hearings ("BPH") to deny him parole. Petitioner has paid the filing fee. This
order directs Respondent to show cause why the petition should not be granted.

BACKGROUND According to the petition and the attachments thereto, Petitioner was convicted in Alameda County Superior Court of second degree murder with a firearm and was sentenced to a term of sixteen years-to-life in 1997. Petitioner challenges the BPH's decision finding him unsuitable for parole in 2007. According to the petition, Petitioner exhausted his claims in the state courts, which were finally resolved by a petition for review in the California Supreme Court, which denied review on April 23, 2008. The petition was filed in this Court on June 4, 2008.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Standard of Review

DISCUSSION

The Court may entertain a petition for a writ of habeas corpus "in behalf of a person in 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). It shall "award the writ or issue an order directing the Respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. B. Legal Claims Petitioner seeks federal habeas corpus relief from the BPH's decision finding him unsuitable for parole. Liberally construed, Petitioner's claims appear colorable under § 2254 and merit an answer from Respondent. See Hayward v. Marshall, 512 F.3d 536, 543 (9th Cir. 2008); Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003) (finding that initial refusal to set parole date for prisoner with fifteen-to-life sentence implicated prisoner's liberty interest in release on parole which cannot be denied without adequate procedural due process protections). CONCLUSION For the foregoing reasons and for good cause shown, 1. The Clerk shall serve by certified mail a copy of this order and the petition

and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 2. Respondent shall file with the Court and serve on Petitioner, within sixty

(60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state trial record that have been transcribed previously and that 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

are relevant to a determination of the issues presented by the petition. 3. If Petitioner wishes to respond to the answer, he shall do so by filing a

traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the answer. 4. Petitioner is reminded that all communications with the Court must be

served on Respondent by mailing a true copy of the document to Respondent's counsel. Petitioner must also keep the Court and all parties informed of any change of address.

SO ORDERED. DATED: 01/08/09 THELTON E. HENDERSON United States District Judge

3