Guillermo v. McDonald

Filing 5

ORDER TO SHOW CAUSE; GRANTING 3 Leave to Proceed in forma pauperis. Signed by Judge Jeffrey S. White on 02/03/2012. (tmi, COURT STAFF) (Filed on 2/3/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 CELESTINO GUILLERMO, 11 12 13 Petitioner, vs. TERRI MCDONALD, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) No. C 11-6231 JSW (PR) ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 3) 16 INTRODUCTION 17 18 19 20 21 22 Petitioner, a prisoner of the State of California proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state court conviction. This order directs Respondent to show cause why the petition should not be granted, and grants Petitioner’s application for leave to proceed in forma pauperis. BACKGROUND 23 24 25 26 27 28 In 2010, Petitioner was convicted in San Mateo County Superior Court of several counts of “rape in concert” (Cal. Pen. Code § 264.1). The trial court sentenced him to a term of thirty-six years in state prison. In 2010, the California Court of Appeal affirmed and the California Supreme Court denied a petition for review. The instant petition was filed on December 13, 2011. 1 2 DISCUSSION I 3 Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to 7 show cause why the writ should not be granted, unless it appears from the application that 8 the applicant or person detained is not entitled thereto.” Id. § 2243. 9 II 10 Legal Claims Petitioner claims that: (1) race-based peremptory challenges to prospective jurors 11 by the prosecutor deprived petitioner of his constitutional right to a jury composed of a 12 fair cross-section of the community; and (2) there was insufficient evidence to support his 13 conviction for rape in concert. Liberally construed, these claims are sufficient to warrant 14 a response from Respondent. 15 CONCLUSION 16 For the foregoing reasons and for good cause shown, 17 1. The Clerk shall serve by certified mail a copy of this order and the petition, and 18 all attachments thereto, on Respondent and Respondent's attorney, the Attorney General 19 of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 20 2. Respondent shall file with the Court and serve on Petitioner, within ninety (90) 21 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 22 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 23 not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all 24 portions of the state trial record that have been transcribed previously and that are relevant 25 to a determination of the issues presented by the petition. If Petitioner wishes to respond 26 to the answer, he shall do so by filing a traverse with the Court and serving it on 27 Respondent within thirty (30) days of the date the answer is filed. 28 2 1 3. Respondent may, within ninety (90) days, file a motion to dismiss on 2 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to 3 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, 4 Petitioner shall file with the Court and serve on Respondent an opposition or statement of 5 non-opposition within thirty (30) days of the date the motion is filed, and Respondent 6 shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date 7 any opposition is filed. 8 9 4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court informed of any change of address by filing a separate paper captioned “Notice 10 of Change of Address.” He must comply with the Court’s orders in a timely fashion. 11 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 12 to Federal Rule of Civil Procedure 41(b). 13 14 15 16 17 18 5. The application to proceed in forma pauperis (docket number 3) is GRANTED. IT IS SO ORDERED. DATED: 02/03/2012 JEFFREY S. WHITE United States District Judge 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 CELESTINO GUILLERMO, Plaintiff, 7 8 9 10 Case Number: CV11-06231 JSW CERTIFICATE OF SERVICE v. TERRI MCDONALD et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 3, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 19 Celestino Guillermo F96691 High Desert State Prison P.O. Box 3030 Susanville, CA 96127 20 Dated: February 3, 2012 18 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Tana Ingle, Deputy Clerk

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