Manning v. Gounds et al

Filing 2

ORDER TO SHOW CAUSE: Answer to be filed by 10/1/2010; Traverse to be filed by 11/5/2010; Signed by Judge Marilyn Hall Patel on 7/28/2010. (Attachments: # 1 CertServ)(awb, COURT STAFF) (Filed on 7/29/2010)

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Manning v. Gounds et al Doc. 2 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EMANUEL MANNING, Petitioner, v. R. GROUNDS, warden, Respondent. / No. C 10-768 MHP (pr) ORDER TO SHOW CAUSE INTRODUCTION Emanuel Manning, an inmate at the Correctional Training Facility in Soledad, filed this pro se action seeking a 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. BACKGROUND Manning states in his petition that he is serving a sentence of 15 years to life in prison as a result of a conviction in Riverside County Superior Court for second degree murder. His petition does not challenge his conviction but instead challenges a September 10, 2008 decision by the Board of Parole Hearings ("BPH") to find him not suitable for parole. Manning reports that he filed unsuccessful habeas petitions in the state courts, including the California Supreme Court, before filing this action. /// /// Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Petitioner alleges in his petition that the BPH's decision violated his federal right to due process because it was not supported by sufficient evidence. Liberally construed, this claim is cognizable in a federal habeas action. CONCLUSION For the foregoing reasons, 1. 2. The petition's federal claim warrants a response. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner. 3. Respondent must file and serve upon petitioner, on or before October 1, 2010, 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 must file with the answer a copy of all portions of the parole hearing record that have been previously transcribed and that are relevant to a determination of the issues presented by the petition. 4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent on or before November 5, 2010. Petitioner's traverse, including any memorandum of points and authorities, may not exceed 20 pages in 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 length. 5. Petitioner is responsible for prosecuting this case. He must keep the court 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). IT IS SO ORDERED. DATED: July 28, 2010 Marilyn Hall Patel United States District Judge 3

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