Nary v. Hartley
Filing
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ORDER TO SHOW CAUSE. Signed by Judge Charles R. Breyer on 6/15/2011. (crblc1, COURT STAFF) (Filed on 6/16/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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No. C 11-02795 CRB
STEVEN ROBERT NARY,
ORDER TO SHOW CAUSE
Plaintiff,
v.
JAMES D HARTLEY,
Defendant.
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Petitioner, who is in the custody of the California Department of Corrections, has filed
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a petition for a writ of habeas corpus, pursuant to 28 U.S.C. section 2254. Petitioner was
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convicted of second degree murder and sentenced to 16 years to Life.
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This Court may entertain a petition for a writ of habeas corpus “in behalf of a person
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in custody pursuant to the judgment of a State court only on the ground that he is in custody
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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
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Rose v. Hodges, 423 U.S. 19, 21 (1975).
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A district court 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 the
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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal
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is appropriate only where the allegations in the petition are vague or conclusory, palpably
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incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
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1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
The Court has reviewed the petition and finds good cause to proceed. Accordingly,
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The Clerk of the Court shall serve by certified mail a copy of this Order
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and the petition and all attachments thereto upon the Respondents and
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the Respondents’ counsel, the Attorney General of the State of
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California. The Clerk shall also serve a copy of this Order on the
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Petitioner’s counsel.
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Respondents shall file with this Court and serve upon the Petitioner,
within sixty (60) days of the issuance of this Order, an answer
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United States District Court
For the Northern District of California
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conforming in all respects to Rule 5 of the Rules Governing Section
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2254 Cases, showing cause why a writ of habeas corpus should not be
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issued. Respondent shall file with the answer a copy of all portions of
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the state trial and appellate record that have been transcribed previously
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and that are relevant to a determination of the issues presented by the
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petition.
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3.
If the Petitioner wishes to respond to the answer, he shall do so by filing
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a traverse with the court and serving it upon the Respondents within
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thirty (30) days of his receipt of the answer.
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IT IS SO ORDERED.
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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
Dated: June 16, 2011
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G:\CRBALL\2011\2795\OSC.wpd
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