Rodriguez v. Curry

Filing 3

ORDER TO SHOW CAUSE. Signed by Judge JEFFREY S. WHITE on 12/3/09. (jjo, COURT STAFF) (Filed on 12/3/2009)

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vs. BEN CURRY, Warden, Respondent. ANTONIO RODRIGUEZ, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 09-3606 JSW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORDER TO SHOW CAUSE

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 Board of Parole Hearings ("BPH") denial of

parole during parole suitability proceedings in 2003 and 2007. 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 second degree murder in Los Angeles County Superior Court in 1985, and was sentenced to a term of 15 years-to-life in prison. In this habeas action, Petitioner does not challenge his conviction, but instead

challenges the execution of his sentence. Petitioner contends that the denial of parole by the BPH during parole suitability proceedings in 2003 and 2007 violated his constitutional rights, his rights under federal law and the terms of his plea agreement. He

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alleges that he has exhausted state judicial remedies as to all of the claims raised in his federal petition.
DISCUSSION I. Standard of Review 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 his rights were violated by the parole denials in 2003 and 2007. Liberally construed, the allegations are sufficient to warrant a response from Respondent. See Board of Pardons v. Allen, 482 U.S. 369 (1987); see, e.g., Morales. v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995).
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 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: December 3, 2009 JEFFREY S. WHITE United States District Judge

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Antonio Rodriguez P.O. 689 BW-333 Soledad, CA 93960 Dated: December 3, 2009 v. BEN CURRY et al, Defendant. ANTONIO RODRIGUEZ, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-03606 JSW CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 3, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk