Gregory v. Lewis

Filing 5

ORDER to Show Cause. Respondent must file Answer with the Court and serve upon Petitioner by 4/30/2012. Petition may file Traverse with the Court and serve uon Respondent by 5/31/2012. Signed by Judge Edward M. Chen on 4/6/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH BRENT GREGORY,

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Petitioner,
v.

ORDER TO SHOW CAUSE

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For the Northern District of California

United States District Court

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No. C-12-967 EMC (pr)

G. LEWIS, Warden,

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Respondent.
___________________________________/

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I.

INTRODUCTION

Joseph Brent Gregory, an inmate at Pelican Bay State Prison, filed this pro se action for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review

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pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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II.

BACKGROUND

Gregory alleges that he is serving a sentence of 4 years in prison on a second degree robbery

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conviction that occurred before 2010. In this action, he challenges the execution of his sentence. He

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contends that the forfeiture of some of his good behavior credits pursuant to California Penal Code

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§ 2933.6, as amended effective January 25, 2010, violated his right to be free of ex post facto laws.

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He appears to contend that the application of the amended version of Section 2933.6 to him resulted

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in his release date being extended from March 20, 2012 until August 5, 2012.

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Gregory alleges that he filed petitions for writ of habeas corpus in the California courts

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raising the same issues as raised in this petition. The California Supreme Court denied his petition

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on November 16, 2011. Gregory then filed this action.

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III.

DISCUSSION

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). A

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district court considering an application for a writ of habeas corpus shall "award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th
Cir. 1990).

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For the Northern District of California

United States District Court

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In his petition, Gregory contends that the forfeiture of some of his good behavior credits

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pursuant to California Penal Code § 2933.6, as amended effective January 25, 2010, violated his

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right to be free of ex post facto laws. The petition suggests that the credits would not have been

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forfeited under the version of § 2933.6 in effect at the time he committed his crime. The Ex Post

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Facto Clause, U.S. Const., Art. I, § 10, cl. 1, forbids the states from statutorily cancelling time

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credits and making ineligible for early release any prisoner who was previously eligible. See Lynce

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v. Mathis, 519 U.S. 433, 446-49 (1997) (retroactive cancellation of prison credits had impermissible

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effect of lengthening period of incarceration in violation of Ex Post Facto Clause). Liberally

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construed, the petition states a cognizable claim for a violation of the Ex Post Facto Clause.

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IV.

CONCLUSION

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For the foregoing reasons,

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1.

The petition warrants a response.

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2.

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

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attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State

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

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3.

Respondent must file and serve upon Petitioner, on or before April 30, 2012, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of the court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petition. Respondent should not expect any

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extensions of this deadline due to the time-sensitive nature of petitioner's claims.

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4.

If Petitioner wishes to respond to the answer, he must do so by filing a traverse with

the Court and serving it on Respondent on or before May 31, 2012.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

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Court informed of any change of address and must comply with the Court's orders in a timely

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fashion.

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For the Northern District of California

United States District Court

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6.

Petitioner is cautioned that he must include the case name and case number for this

case on any document he submits to this Court for consideration in this case.
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Petitioner's in forma pauperis application is GRANTED. (Docket # 2, # 4.)

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IT IS SO ORDERED.

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Dated: April 6, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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