Thompkins v. Curry

Filing 4

ORDER TO SHOW CAUSE Show Cause Response due by 6/1/2009.. Signed by Judge Jeffrey S. White on 4/2/09. (Attachments: # 1 Certificate of Service)(fj, COURT STAFF) (Filed on 4/2/2009)

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vs. B. CURRY, Warden, Respondent. RUFUS THOMPKINS, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 08-4671 JSW (PR) ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

INTRODUCTION Petitioner, a prisoner of the State of California, currently incarcerated at the Correctional Training Facility in Soledad, California, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the decision by the California Board of Parole

Hearings ("Board") to deny Petitioner 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, Petitioner was convicted of first degree murder and use of a weapon in San Diego County Superior Court, and, was sentenced him to a term of 27 years-to-life in state prison. In 2006, the Board found Petitioner unsuitable for parole.

Petitioner challenged this decision unsuccessfully in a habeas petition filed in the superior court. Petitioner contends that he also challenged the Board's decision in the state appellate and supreme courts by petitions for a writ of habeas corpus.

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I Standard of Review

DISCUSSION

This 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." Id. § 2243. II Legal Claims

Petitioner alleges that the Board's decision violated his right to due process because the decision was not supported by some evidence. Liberally construed, the allegations are sufficient to warrant a response from Respondent. See Board of Pardons v. Allen, 482 U.S. 369; see, e.g., Superintendent v. Hill, 472 U.S. 445 (1985); Sass v. California Bd. of Prison Terms, 461 F.3d 1123 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003).
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 granted. 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 are relevant to a determination of the issues presented by the petition. If Petitioner wishes to respond

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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. 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition within thirty (30) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep

the Court informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED. DATED: April 2, 2009 JEFFREY S. WHITE United States District Judge

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