Matheney v. Grounds et al

Filing 3

ORDER TO SHOW CAUSE. Signed by Judge William Alsup on 10/28/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/28/2010)

Matheney v. Grounds et al

Doc. 3

1 2 3 4 5 6 7 8 9 10 KELLY J. MATHENY, Petitioner, v. RANDY GROUNDS, Respondent. / INTRODUCTION Petitioner, a California prisoner currently incarcerated at Soledad State Prison in Soledad, California, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the California Board of Parole Hearings ("Board"). Petitioner has paid the filing fee. STATEMENT In 1993, petitioner pled guilty to one count of second-degree murder, and he was sentenced to a term of fifteen years to life in state prison. In 2009, the Board found petitioner unsuitable for parole. Petitioner challenged this decision in unsuccessful habeas petitions filed in the California courts ANALYSIS A. STANDARD OF REVIEW This court may entertain a petition for writ of habeas corpus "in behalf of a person in No. C 10-4123 WHA (PR) ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10

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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Rule 2(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. "`[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). B. LEGAL CLAIMS As grounds for federal habeas relief, petitioner claims that (1) the denial of parole violated his plea agreement; (2) the denial of parole violated his right to due process because it was not based on sufficient evidence of his unsuitability; and (3) the denial of parole violated various provisions of the California Penal Code and California regulations. The claims based upon state law are not cognizable, as federal habeas relief is only available based upon the violation of federal law. See 28 U.S.C. 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Petitioner's other claims, when liberally construed, are cognizable. CONCLUSION 1. The clerk shall mail a copy of this order and the petition with all attachments to the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on the petitioner. 2. Respondent shall file with the court and serve on petitioner, within ninety 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 based on the claims found cognizable herein. 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 2

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

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 days of the date the answer is filed. 3. Respondent may file, within ninety days, 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 days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within fifteen days of the date any opposition is filed. 4. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner 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). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). IT IS SO ORDERED.

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: October

28

, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

G:\PRO-SE\WHA\HC.10\MATHENY4123.OSC.wpd

3