Gutierrez v. Grounds

Filing 5

ORDER TO SHOW CAUSE. Signed by Judge JEFFREY S. WHITE on 11/12/10. (jjo, COURT STAFF) (Filed on 11/12/2010)

Gutierrez v. Grounds

Doc. 5

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vs. R. GROUNDS, Warden, Respondent. ALFONSO GUTIERREZ, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 10-0863 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 California Training Facility in San Quentin, California, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the decision of the Board of Parole Hearings ("Board") to deny him parole in 2009. 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, in 1986, Petitioner was convicted of second-degree murder and was sentenced to 17 years-to-life in state prison. In this habeas action,

Petitioner does not challenge his conviction, but instead challenges the decision of the Board to deny him parole. He alleges that he has exhausted state judicial remedies as to all of the claims raised in his federal petition.

Dockets.Justia.com

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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 makes the following claims in his petition: (1) the denial of parole violated his right to due process because it was not supported by any evidence that he would present a danger to society if released; and (2) the Board's decision not to hold another parole hearing for three more years violated his rights under the Eighth Amendment and the Ex Post Facto Clause. Liberally construed, the allegations are sufficient to warrant a response from Respondent. 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 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 to

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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: November 12, 2010 JEFFREY S. WHITE United States District Judge

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Alfonso Gutierrez D-27610 CTF P.O. 689 Soledad, CA 93960 Dated: November 12, 2010 v. R GROUNDS et al, Defendant. ALFONSO GUTIERREZ, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV10-00863 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 November 12, 2010, 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