Gutierrez v. Martel

Filing 4

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)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
VINCENT GUTIERREZ,

11
For the Northern District of California

United States District Court

10

Petitioner,

ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

v.

12
13

No. C 11-3928 WHA (PR)

MICHAEL MARTEL, Warden,
Respondent.

14

(Docket No. 2)
/

15
INTRODUCTION

16
17

Petitioner, a California prisoner incarcerated at Salinas Valley State Prison, filed a pro

18

se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He has applied for leave to

19

proceed in forma pauperis.
ANALYSIS

20
21

A.

STANDARD OF REVIEW

22

This court may entertain a petition for writ of habeas corpus "in behalf of a person in

23

custody pursuant to the judgment of a State court only on the ground that he is in custody in

24

violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose

25

v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

26

requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

27

of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

28

court must “specify all the grounds for relief which are available to the petitioner ... and shall

1

set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

2

the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

3

sufficient, for the petition is expected to state facts that point to a ‘real possibility of

4

constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

5

688, 689 (1st Cir. 1970)).

6

B.

LEGAL CLAIMS

credits without a hearing violated his right to due process; (2) the denial of his objection to an

9

earlier waiver of credits without a hearing violated his right to due process; and (3) the trial

10

court opted not to give petitioner probation without conducting a hearing, in violation of his

11
For the Northern District of California

As grounds for federal habeas relief, petitioner claims: (1) that the denial of sentencing

8

United States District Court

7

right to due process. When liberally construed, these claims are cognizable.

12

CONCLUSION

13

1. The clerk shall mail a copy of this order and the petition with all attachments to the

14

respondent and the respondent's attorney, the Attorney General of the State of California. The

15

clerk shall also serve a copy of this order on the petitioner.

16

2. Respondent shall file with the court and serve on petitioner, within ninety days of the

17

issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

18

Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

19

the claim found cognizable herein. Respondent shall file with the answer and serve on

20

petitioner a copy of all portions of the state trial record that have been transcribed previously

21

and that are relevant to a determination of the issues presented by the petition.

22
23
24

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

25

in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

26

Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the

27

court and serve on respondent an opposition or statement of non-opposition within thirty days

28

of the date the motion is filed, and respondent shall file with the court and serve on petitioner a
2

1
2

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

3

respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

4

keep the court informed of any change of address and must comply with the court's orders in a

5

timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

6

pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

7

(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

8

5. Petitioner’s motion for leave to proceed in forma pauperis (docket number 2) is
GRANTED in light of his lack of funds.

10

IT IS SO ORDERED.

11
For the Northern District of California

United States District Court

9

12

Dated: August

29

, 2011.

13

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24

G:\PRO-SE\WHA\HC.11\GUTIERREZ3928.OSC.wpd

25
26
27
28
3