Polk v. Small

Filing 7

ORDER TO SHOW CAUSE. 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 serv e a copy of this order on Petitioner. 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, showi ng 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 relevantto a determination of the issues presented by the petition. 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 the date the answer is filed. Respondent may file a mo tion 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 Respon dent 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 the date the opposition is filed. It is Petit ioners 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 Courts 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). Signed by Judge Jeffrey S. White on 11/4/2009. (ls, COURT STAFF) (Filed on 11/4/2009) (Additional attachment(s) added on 11/4/2009: # 1 Certificate of Service) (ls, COURT STAFF).

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vs. LARRY SMALL, Warden, Respondent. LESTER LAMOUNT POLK, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 09-3097 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, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of his state conviction. 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 supporting documents, Petitioner was convicted after a trial before a judge in Monterey County Superior Court of murder, as well as other crimes and was sentenced to life in state prison without the possibility of parole, as well as a determinate term of 25 years running concurrently. Petitioner's appeal to the California Court of Appeal and his petition for review in the California Supreme Court were ultimately denied in 1994. Petitioner filed the instant federal habeas petition in the United States District Court on June 16, 2009 and the matter was transferred here on July 6, 2009.

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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 raises the following federal ground for relief in the petition: 1) Petitioner was deprived of his right to a jury trial in that he did not expressly waive his right in writing or orally in court; 2) Petitioner was deprived of a jury trial on the special circumstances allegations; and 3) ineffective assistance of trial and appellate counsel.
Liberally construed, it does not appear from the face of the petition that Petitioner is not entitled to relief on the other claims set forth above. Accordingly, Respondent is ordered to respond to the petition as set forth below. 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

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to a determination of the issues presented by the petition. 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 the date the answer is filed. 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 the date the motion is filed, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days the date the opposition is filed. 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: November 4, 2009 JEFFREY S. WHITE United States District Judge

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