Ramirez v. Lewis

Filing 6

ORDER REOPENING ACTION; ORDER TO SHOW CAUSE; DIRECTIONS TO CLERK. Signed by Judge Richard Seeborg on 5/24/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 5/25/2011)

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*E-Filed 5/25/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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JOSE RAUL RAMIREZ,
Petitioner,

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No. C 11-01436 RS (PR)
ORDER REOPENING ACTION;

v.

ORDER TO SHOW CAUSE;

GAIL LEWIS, Warden,

DIRECTIONS TO CLERK

Respondent.
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INTRODUCTION
This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. The petition was dismissed for failure to pay the filing fee or file a proper

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application to proceed in forma pauperis. The filing fee now having been paid, the action is

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hereby REOPENED. The order of dismissal (Docket No. 3) and the judgment (Docket No.

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4) are both hereby VACATED. The petition is now before the Court for review pursuant to

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28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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BACKGROUND
According to the petition, in 2004, petitioner pleaded guilty in a Monterey County
Superior Court to a charge of car jacking. Consequent to the guilty plea, petitioner was
No. C 11-01436 RS (PR)
ORDER TO SHOW CAUSE

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sentenced to nineteen years in state prison.
DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Petitioner claims that the trial court imposed an upper-term sentence in violation of

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petitioner’s Sixth Amendment rights. Liberally construed, this claim appears to be

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cognizable in a federal habeas action.

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CONCLUSION
1. The Clerk shall serve by certified mail a copy of this order, the petition and all

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attachments thereto, on respondent and respondent’s counsel, the Attorney General for the

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State of California. The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner, within ninety (90)

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days of the date this order is filed, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not

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be granted based on petitioner’s cognizable claim. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that previously have been

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transcribed and that are relevant to a determination of the issues presented by the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within ninety (90) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

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such a motion, petitioner shall file with the Court and serve on respondent an opposition or

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statement of non-opposition within thirty (30) days of the date the motion is filed, and

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respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of

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the date any opposition is filed.

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5. 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.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.

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8. The Clerk is directed to reopen the action.

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IT IS SO ORDERED.

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DATED: May 24, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-01436 RS (PR)
ORDER TO SHOW CAUSE