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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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 11-02976 CRB

LEIF THURSTON CARLSON, Sr.,

ORDER TO SHOW CAUSE

Petitioner,
v.
ATTORNEY GENERAL, State of California

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Respondent.

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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 2254.1 Petitioner was

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convicted in the Superior Court of Contra Costa County of one count of misdemeanor child

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endangerment in violation of California Penal Code section 273(a)(b).

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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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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).

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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)).

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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.

United States District Court
For the Northern District of California

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2.

Respondents shall file with this Court and serve upon the Petitioner,

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within sixty (60) days of the issuance of this Order, an answer

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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: July 6, 2011

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G:\CRBALL\2011\2976\Order to Show Cause.wpd

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