Gutierrez v. Martel
Filing
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ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 8/29/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/2/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VINCENT GUTIERREZ,
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For the Northern District of California
United States District Court
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Petitioner,
ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS
v.
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No. C 11-3928 WHA (PR)
MICHAEL MARTEL, Warden,
Respondent.
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(Docket No. 2)
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INTRODUCTION
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Petitioner, a California prisoner incarcerated at Salinas Valley State Prison, filed a pro
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se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He has applied for leave to
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proceed in forma pauperis.
ANALYSIS
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A.
STANDARD OF REVIEW
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This court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose
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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ
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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state
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court must “specify all the grounds for relief which are available to the petitioner ... and shall
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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of
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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not
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sufficient, for the petition is expected to state facts that point to a ‘real possibility of
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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d
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688, 689 (1st Cir. 1970)).
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B.
LEGAL CLAIMS
credits without a hearing violated his right to due process; (2) the denial of his objection to an
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earlier waiver of credits without a hearing violated his right to due process; and (3) the trial
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court opted not to give petitioner probation without conducting a hearing, in violation of his
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For the Northern District of California
As grounds for federal habeas relief, petitioner claims: (1) that the denial of sentencing
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United States District Court
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right to due process. When liberally construed, these claims are cognizable.
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CONCLUSION
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1. The clerk shall mail a copy of this order and the petition with all attachments to the
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respondent and the respondent's attorney, the Attorney General of the State of California. The
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clerk shall also serve a copy of this order on the petitioner.
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2. Respondent shall file with the court and serve on petitioner, within ninety days of the
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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing
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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on
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the claim found cognizable herein. Respondent shall file with the answer and serve on
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petitioner a copy of all portions of the state trial record that have been transcribed previously
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and that are relevant to a determination of the issues presented by the petition.
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within thirty days of the date the answer is filed.
3. Respondent may file, within ninety days, a motion to dismiss on procedural grounds
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in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the
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court and serve on respondent an opposition or statement of non-opposition within thirty days
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of the date the motion is filed, and respondent shall file with the court and serve on petitioner a
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reply within fifteen days of the date any opposition is filed.
4. Petitioner is reminded that all communications with the court must be served on
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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must
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keep the court informed of any change of address and must comply with the court's orders in a
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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772
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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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5. Petitioner’s motion for leave to proceed in forma pauperis (docket number 2) is
GRANTED in light of his lack of funds.
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IT IS SO ORDERED.
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For the Northern District of California
United States District Court
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Dated: August
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, 2011.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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