Mendez v. Lewis

Filing 9


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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 HENRY C. MENDEZ, 11 12 13 14 Petitioner, vs. LEWIS, Warden, Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) No. C 12-1342 JSW (PR) ORDER TO SHOW CAUSE; DENYING APPOINTMENT OF COUNSEL (Docket No. 7) 16 INTRODUCTION 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a prisoner incarcerated at Pelican Bay State Prison who is proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the calculation of his release date by prison officials. This order directs Respondent to show cause why the petition should not be granted, and denies Petitioner’s motion for appointment of counsel. BACKGROUND In 1993, Petitioner was convicted in Los Angeles County Superior Court of robbery and other related offenses. The trial court sentenced him to a term of 37 years in state prison. The California Court of Appeal affirmed the judgment on appeal, and the California Supreme Court denied a petition for review. In 2011 and 2012, Petitioner filed unsuccessful habeas petitions in all three levels of the California courts raising the claim 1 raised here, namely that a new state law has changed his release date, in violation of his 2 rights under the Ex Post Facto Clause of the constitution. 3 4 DISCUSSION I 5 Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 6 person in custody pursuant to the judgment of a State court only on the ground that he is 7 in custody in violation of the Constitution or laws or treaties of the United States.” 28 8 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to 9 show cause why the writ should not be granted, unless it appears from the application that 10 the applicant or person detained is not entitled thereto.” Id. § 2243. 11 II 12 Legal Claims As grounds for federal habeas relief, Petitioner claims that a new state law violates 13 his constitutional rights under the Ex Post Facto Clause of the constitution because it has 14 retroactively delayed the date he will be released from state prison. Liberally construed, 15 this claim is sufficient to warrant a response from Respondent. 16 CONCLUSION 17 For the foregoing reasons and for good cause shown, 18 1. The Clerk shall serve by certified mail a copy of this order and the petition, and 19 all attachments thereto, on Respondent and Respondent's attorney, the Attorney General 20 of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 21 2. Respondent shall file with the Court and serve on Petitioner, within ninety (90) 22 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 23 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 24 not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all 25 portions of the state trial record that have been transcribed previously and that are relevant 26 to a determination of the issues presented by the petition. If Petitioner wishes to respond 27 to the answer, he shall do so by filing a traverse with the Court and serving it on 28 2 1 2 Respondent within thirty (30) days of the date the answer is filed. 3. Respondent may, within ninety (90) days, file a motion to dismiss on 3 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to 4 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, 5 Petitioner shall file with the Court and serve on Respondent an opposition or statement of 6 non-opposition within thirty (30) days of the date the motion is filed, and Respondent 7 shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date 8 any opposition is filed. 9 4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep 10 the Court informed of any change of address by filing a separate paper captioned “Notice 11 of Change of Address.” He must comply with the Court’s orders in a timely fashion. 12 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 13 to Federal Rule of Civil Procedure 41(b). 14 5. The motion for appointment of counsel (docket number 7) is DENIED for 15 want of extraordinary circumstances or any apparent need for an evidentiary hearing at 16 this time. 17 18 19 20 IT IS SO ORDERED. DATED: April 26, 2012 JEFFREY S. WHITE United States District Judge 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 HENRY C MENDEZ, Plaintiff, 7 8 9 10 Case Number: CV12-01342 JSW CERTIFICATE OF SERVICE v. LEWIS, PBSP WARDEN 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 April 26, 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 18 19 20 21 22 23 24 25 26 27 28 Henry C. Mendez C-01966 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532-2500 Dated: April 26, 2012 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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