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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 TERENCE A. BURTON, 11 12 13 14 Petitioner, vs. MICHAEL MARTEL, Warden, Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) No. C 11-1607 JSW (PR) ORDER TO SHOW CAUSE 16 INTRODUCTION 17 18 19 20 21 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 22 23 24 25 26 27 28 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. 1 2 DISCUSSION I 3 Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to 7 show cause why the writ should not be granted, unless it appears from the application that 8 the applicant or person detained is not entitled thereto.” Id. § 2243. 9 II 10 Legal Claims Petitioner claims: (1) that his sentence violated his constitutional right to a jury; 11 and (2) that the use of his prior convictions to enhance his current sentence breaches the 12 plea agreements for those prior convictions and violates due process. Liberally construed, 13 these claims are sufficient to warrant a response from Respondent. 14 CONCLUSION 15 For the foregoing reasons and for good cause shown, 16 1. The Clerk shall serve by certified mail a copy of this order and the petition, and 17 all attachments thereto, on Respondent and Respondent's attorney, the Attorney General 18 of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 19 2. Respondent shall file with the Court and serve on Petitioner, within ninety (90) 20 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 21 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 22 not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all 23 portions of the state trial record that have been transcribed previously and that are relevant 24 to a determination of the issues presented by the petition. If Petitioner wishes to respond 25 to the answer, he shall do so by filing a traverse with the Court and serving it on 26 Respondent within thirty (30) days of the date the answer is filed. 27 28 3. Respondent may, within ninety (90) days, file a motion to dismiss on 2 1 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to 2 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, 3 Petitioner shall file with the Court and serve on Respondent an opposition or statement of 4 non-opposition within thirty (30) days of the date the motion is filed, and Respondent 5 shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date 6 any opposition is filed. 7 4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep 8 the Court informed of any change of address by filing a separate paper captioned “Notice 9 of Change of Address.” He must comply with the Court’s orders in a timely fashion. 10 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 11 to Federal Rule of Civil Procedure 41(b). 12 13 14 15 IT IS SO ORDERED. DATED: June 30, 2011 JEFFREY S. WHITE United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 TERENCE A. BURTON, Plaintiff, 7 8 9 10 Case Number: CV11-01607 JSW CERTIFICATE OF SERVICE v. MICHAEL MARTEL et al, Defendant. / 11 12 13 14 15 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. 16 17 18 Terence A. Burton P58217 San Quentin State Prison San Quentin, CA 94974 19 Dated: June 30, 2011 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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