Bailey v. Diaz

Filing 18

ORDER TO SHOW CAUSE, granting 9 MOTION for Extension of Time to File, 14 MOTION for Leave to Proceed in forma pauperis, 3 MOTION for Leave to Proceed in forma pauperis. Habeas Answer due by 10/1/2012. Signed by Judge Charles R. Breyer on July 31, 2012. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 7/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JASPER BAILEY, G60744,
Petitioner,

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vs.
RALPH DIAZ, Acting Warden,
Respondent.

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No. C 12-1414 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 3, 9 & 14)

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Petitioner, a state prisoner incarcerated at the California Substance Abuse

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Treatment Facility and State Prison, Corcoran, has filed a pro se petition for a

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writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction and

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sentence from Santa Clara County Superior Court. He also seeks to proceed in

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forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND

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Petitioner was convicted by a jury of one count of aggravated sexual

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assault of a child under the age of 14 years and two counts of rape by force,

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violence, duress menace or fear. On May 4, 2009, he was sentenced to 27 years

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to life in state prison.

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Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and the Supreme Court of California, which denied review on

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December 21, 2010. He also unsuccessfully sought habeas relief from the state

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court. The Supreme Court of California denied his final petition for state habeas

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relief on December 14, 2011.

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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.

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

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including ineffective assistance of counsel, prosecutorial misconduct and false

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evidence. Liberally construed, the claims appear cognizable under § 2254 and

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merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th

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Cir. 2001) (federal courts must construe pro se petitions for writs of habeas

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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 # 3, 9 &

14) is GRANTED.
2.

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

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

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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
traverse with the court and serving it on respondent within 30 days of his receipt
of the answer.
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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 must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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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: July 31, 2012

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CHARLES R. BREYER
United States District Judge

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