Burton v. Martel

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge Jeffrey S. White on 6/30/11. (jjoS, COURT STAFF) (Filed on 6/30/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TERENCE A. BURTON,

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Petitioner,
vs.
MICHAEL MARTEL, Warden,
Respondent.

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No. C 11-1607 JSW (PR)
ORDER TO SHOW CAUSE

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INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of
his state court conviction. He has paid the filing fee. This order directs Respondent to
show cause why the petition should not be granted.
BACKGROUND

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Petitioner was convicted in Santa Clara County Superior Court of resisting arrest
and exhibiting a weapon to prevent arrest. The trial court sentenced him to a term of 30
years to life in state prison. The California Court of Appeal affirmed the judgment on
appeal, and the California Supreme Court denied a petition for review. Habeas petitions
filed in all three levels of the California courts were denied thereafter. Petitioner then
filed the instant federal petition.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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show cause why the writ should not be granted, unless it appears from the application that

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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Legal Claims
Petitioner claims: (1) that his sentence violated his constitutional right to a jury;

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and (2) that the use of his prior convictions to enhance his current sentence breaches the

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plea agreements for those prior convictions and violates due process. Liberally construed,

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these claims are sufficient to warrant a response from Respondent.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall 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 issuance of this order, 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

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not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition. If Petitioner wishes to respond

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to the answer, he shall do so by filing a traverse with the Court and serving it on

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Respondent within thirty (30) days of the date the answer is filed.

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3. Respondent may, within ninety (90) days, file a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion,

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Petitioner shall file with the Court and serve on Respondent an opposition or statement of

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

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

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any opposition is filed.

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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: June 30, 2011
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TERENCE A. BURTON,
Plaintiff,

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Case Number: CV11-01607 JSW
CERTIFICATE OF SERVICE

v.
MICHAEL MARTEL et al,
Defendant.

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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 June 30, 2011, 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.

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Terence A. Burton P58217
San Quentin State Prison
San Quentin, CA 94974

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Dated: June 30, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk