Cayabo v. Board of Parole Hearings et al

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge JEFFREY S. WHITE on 11/29/10. (jjoS, COURT STAFF) (Filed on 11/29/2010)

Cayabo v. Board of Parole Hearings et al

Doc. 4

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
vs. B. CURRY, Warden, Respondent. RIZALINO CAYABO, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 10-3081 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 Men's Colony in San Luis Obispo, 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 2008. He 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 1985, Petitioner was convicted of second-degree murder and was sentenced to a term of 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

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
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 claims that the denial of parole violated his right to due process because it was not supported by sufficient evidence of his current dangerousness. 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 ninety (60) days of the date the 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. 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 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

2

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

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 of the date any 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 29, 2010 JEFFREY S. WHITE United States District Judge

3

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
v. RIZALINO CAYABO, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV10-03081 JSW CERTIFICATE OF SERVICE

BOARD OF PAROLE HEARINGS et al, Defendant. /

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 29, 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.

Rizalino G. Cayabo D09912 California Men's Colony East P.O. Box 8101 San Luis Obispo, CA 93409-8101 Dated: November 29, 2010 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk