Moore -v- Hedgpeth

Filing 20

ORDER TO SHOW CAUSE. Respondent shall file with the Court an answer within 90 days showing cause why a writ of habeas corpus should not be granted. Show Cause Response due by 7/7/2010. Signed by Judge Richard Seeborg on 4/7/10. (cl, COURT STAFF) (Filed on 4/7/2010)

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1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 09-1634 RS (PR) ORDER TO SHOW CAUSE *E-Filed 4/7/10* UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION GARY BERNARD MOORE, Petitioner, v. ANTHONY HEDGPETH, Warden, Respondent. / No. C 09-1634 RS (PR) ORDER TO SHOW CAUSE INTRODUCTION Petitioner Gary Bernard Moore, a state prisoner at Kern Valley State Prison, filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. 2254. His petition is now before the Court for review pursuant to 28 U.S.C. 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Petitioner has paid the filing fee. BACKGROUND According to the petition, petitioner, in 2006, was found guilty of burglary, and was sentenced to twenty-nine years in state prison. Petitioner sought, and was denied, relief on direct and collateral state review. This federal petition followed. 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 1 DISCUSSION This Court may entertain a petition for 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). A district court considering an application for a writ of habeas corpus 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. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). As grounds for federal habeas relief, petitioner alleges that (1) the trial court violated his right to due process when imposed a sentence based on convictions that did not qualify as sentencing enhancements;1 (2) he was denied his Confrontation Clause rights when he was denied the opportunity to testify and examine witnesses and evidence at his sentencing hearing; and (3) his sentence violates the terms of a prior plea agreement. Liberally construed, these claims appear to be cognizable in a federal habeas action. CONCLUSION 1. The Clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto, on respondent and respondent's counsel, the Attorney General for the State of California. The Clerk shall also serve a copy of this order on petitioner. 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) days of the date this order is filed, 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 based on petitioner's cognizable claims. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that previously have This claim is a consolidation of claims 13 and 5 stated in the petition. 2 No. C 09-1634 RS (PR) ORDER TO SHOW CAUSE 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 been transcribed and that 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's counsel within thirty (30) days of the date the answer is filed. 4. In lieu of an answer, respondent may file, within ninety (90) days of the date this order is filed, a motion to dismiss on procedural grounds, 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 the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of the date any opposition is filed. 5. 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. 6. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and respondent informed of any change of address and 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). 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend. IT IS SO ORDERED. DATED: April 7, 2010 RICHARD SEEBORG United States District Judge 3 No. C 09-1634 RS (PR) ORDER TO SHOW CAUSE 1 2 THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO: Gary B. Moore F-17016 3 Kern Valley State Prison P. O. 5104 4 Delano, Ca 93216 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 No. C 09-1634 RS (PR) ORDER TO SHOW CAUSE DATED: 04/7/2010 s/ Chambers Staff Chambers of Judge Richard Seeborg * Counsel are responsible for distributing copies of this document to any co-counsel who have not registered with the Court's electronic filing system.

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