Pulido v. Cate et al

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Richard Seeborg on 5/31/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 5/31/2012)

1
2
3

*E-Filed 5/31/12*

4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11
12

ANTONIO T. PULIDO,

13

Petitioner,

14

ORDER TO SHOW CAUSE

v.

15
United States District Court
For the Northern District of California

No. C 12-0489 RS (PR)

MATIN BITER, Warden,

16

Respondent.

17

/

18
19
20

INTRODUCTION
This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

21

state prisoner. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243

22

and Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid. The

23

petition appears to be untimely under § 2254. Respondent is directed to consider first if

24

the petition is in fact untimely. If it is, respondent may file a motion to dismiss on such

25

grounds, though he is not required to do so.

26
27
28

No. C 12-0489 RS (PR)
ORDER TO SHOW CAUSE

BACKGROUND

1
2

According to the petition, in 2007, in the Sonoma County Superior Court, petitioner

3

pleaded guilty to aggravated assault and other charges apparently related to gang activity.

4

Consequent to this proceeding, petitioner was sentenced to 29 years in state prison.
DISCUSSION

5
6

This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

7

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

8

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

9

A district court considering an application for a writ of habeas corpus shall “award the writ

10

or issue an order directing the respondent to show cause why the writ should not be granted,

11

unless it appears from the application that the applicant or person detained is not entitled

12

thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

13

the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

14

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

15

As grounds for federal habeas relief, petitioner claims (1) he had no opportunity to

16

consult confidentially with counsel; (2) his psychological condition rendered his plea

17

involuntary; (3) the prosecutor’s “package deal” for the gang members rendered his plea

18

involuntary; (4) he received ineffective assistance of counsel; (5) the conditions of

19

confinement are unconstitutional under the Eighth Amendment; (6) his sentence violates the

20

Eighth Amendment; (7) the sentencing enhancement he received violates the Equal

21

Protection Clause; and (8) his incarceration in solitary confinement violates the Eighth

22

Amendment. Claims 5 and 8 are DISMISSED because they are not brought appropriately in

23

a federal habeas action, which relates only to the legality and duration, not the conditions, of

24

confinement. If petitioner seeks relief for 5 and 8, he must file a civil rights action.

25

Accordingly, the dismissal of these claims is without prejudice to petitioner filing such an

26

action. The remaining claims, when liberally construed, appear to be cognizable on federal

27

habeas review.

28
2

No. C 12-0489 RS (PR)
ORDER TO SHOW CAUSE

CONCLUSION

1
2

1. The Clerk shall serve by certified mail a copy of this order, the petition and all

3

attachments thereto, on respondent and respondent’s counsel, the Attorney General for the

4

State of California. The Clerk shall also serve a copy of this order on petitioner.

5

2. Respondent shall file with the Court and serve on petitioner, within ninety (90)

6

days of the date this order is filed, an answer conforming in all respects to Rule 5 of the

7

Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not

8

be granted based on petitioner’s cognizable claims. Respondent shall file with the answer

9

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

10

been transcribed and that are relevant to a determination of the issues presented by the

11

petition.

12

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

13

with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

14

answer is filed.

15

4. In lieu of an answer, respondent may file, within ninety (90) days of the date this

16

order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

17

Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

18

such a motion, petitioner shall file with the Court and serve on respondent an opposition or

19

statement of non-opposition within thirty (30) days of the date the motion is filed, and

20

respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of

21

the date any opposition is filed.

22
23
24

5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

25

Court and respondent informed of any change of address and must comply with the Court’s

26

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

27

failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

28
3

No. C 12-0489 RS (PR)
ORDER TO SHOW CAUSE

1
2
3

7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.
8. The Clerk shall amend the docket to reflect that Martin Biter, the warden of the

4

prison in which petitioner is housed, is the sole respondent in this action. Petitioner

5

erroneously also named as respondent Matthew Cate, Director of the California Department

6

of Corrections and Rehabilitation. Biter, not Cate, is the sole proper respondent in this

7

action, as he is the custodian having day-to-day control over petitioner, the only person who

8

can produce “the body” of the petitioner. Brittingham v. United States, 982 F.2d 378, 379

9

(9th Cir. 1992) (quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)).

10
11

IT IS SO ORDERED.
DATED: May 31, 2012
RICHARD SEEBORG
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

No. C 12-0489 RS (PR)
ORDER TO SHOW CAUSE