Carlson v. Attorney General, State of California

Filing 2

ORDER to Show Cause. Signed by Judge Charles R. Breyer on July 6, 2011. (crblc2, COURT STAFF) (Filed on 7/6/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 No. C 11-02976 CRB LEIF THURSTON CARLSON, Sr., ORDER TO SHOW CAUSE Petitioner, v. ATTORNEY GENERAL, State of California 15 Respondent. / 16 17 Petitioner, who is in the custody of the California Department of Corrections, has filed 18 a petition for a writ of habeas corpus, pursuant to 28 U.S.C. section 2254.1 Petitioner was 19 convicted in the Superior Court of Contra Costa County of one count of misdemeanor child 20 endangerment in violation of California Penal Code section 273(a)(b). 21 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person 22 in custody pursuant to the judgment of a State court only on the ground that he is in custody 23 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); 24 Rose v. Hodges, 423 U.S. 19, 21 (1975). 25 A district court shall “award the writ or issue an order directing the respondent to 26 show cause why the writ should not be granted, unless it appears from the application that the 27 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal 28 1 Petitioner’s sentence was suspended pending his post-conviction challenges. A person is “in custody” for purposes of habeas jurisdiction if he is serving a suspended sentence. See Pearson v. Olivarez, No. C 94-20585 JW, 1995 WL 25316, at *1 (N.D. Cal. Jan. 20, 1995) (citations omitted). 1 is appropriate only where the allegations in the petition are vague or conclusory, palpably 2 incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 3 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). 4 5 The Court has reviewed the petition and finds good cause to proceed. Accordingly, 1. The Clerk of the Court shall serve by certified mail a copy of this Order 6 and the petition and all attachments thereto upon the Respondents and 7 the Respondents’ counsel, the Attorney General of the State of 8 California. The Clerk shall also serve a copy of this Order on the 9 Petitioner’s counsel. United States District Court For the Northern District of California 10 2. Respondents shall file with this Court and serve upon the Petitioner, 11 within sixty (60) days of the issuance of this Order, an answer 12 conforming in all respects to Rule 5 of the Rules Governing Section 13 2254 Cases, showing cause why a writ of habeas corpus should not be 14 issued. Respondent shall file with the answer a copy of all portions of 15 the state trial and appellate record that have been transcribed previously 16 and that are relevant to a determination of the issues presented by the 17 petition. 18 3. If the Petitioner wishes to respond to the answer, he shall do so by filing 19 a traverse with the court and serving it upon the Respondents within 20 thirty (30) days of his receipt of the answer. 21 22 IT IS SO ORDERED. 23 24 25 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE Dated: July 6, 2011 26 27 28 G:\CRBALL\2011\2976\Order to Show Cause.wpd 2

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