Alejandre v. People of the State of California

Filing 5

ORDER TO SHOW CAUSE, Order Granting 2 MOTION for Leave to Proceed in forma pauperis filed by Ramon Alejandre, Jr., 4 MOTION for Leave to Proceed in forma pauperis filed by Ramon Alejandre, Jr.. Signed by Judge Charles R. Breyer on 2/7/2012. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 2/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAMON ALEJANDRE, JR., T47338,

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Petitioner,

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vs.
P. D. BRAZELTON, Warden,
Respondent.

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No. C 11-4803 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 4)

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Petitioner, a state prisoner incarcerated at Pleasant Valley State Prison

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(PVSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254 challenging a conviction from Contra Costa County Superior Court. He

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also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of, among other crimes, first degree

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murder with an enhancement for benefitting a criminal street gang. On or about

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July 16, 2008, he was sentenced to a prison term of 90 years to life. Petitioner

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unsuccessfully appealed his conviction to the California Court of Appeal and the

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Supreme Court of California.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims
Petitioner seeks federal habeas corpus relief by raising several claims for

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relief, including insufficiency of the evidence, improper admission of evidence

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and ineffective assistance of counsel. Liberally construed, the claims appear

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cognizable under § 2254 and merit an answer from respondent. See Zichko v.

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Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se

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petitions for writs of habeas corpus liberally).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 2 & 4) is

GRANTED.
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The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

60 days of the issuance of this order, an answer conforming in all respects to Rule

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2

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

Respondent may file a motion to dismiss on procedural grounds in

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

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED:

Feb 7, 2012
CHARLES R. BREYER
United States District Judge

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