Alfaro v. Lewis

Filing 4

ORDER TO SHOW CAUSE Habeas Answer due by 8/21/2012.. Signed by Judge Charles R. Breyer on 6/19/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/22/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CESAR ALFARO, E68257,
Petitioner,

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vs.
GREG D. LEWIS, Warden,
Respondent.

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No. C 12-1555 CRB (PR)
ORDER TO SHOW CAUSE

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Petitioner, a state prisoner incarcerated at Pelican Bay State Prison

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(PBSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254 challenging the retroactive application of changes in California Penal Code

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section 2933.6 to him. Effective January 25, 2010, section 2933.6 was changed

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to provide that validated gang members or associates are ineligible to earn credits

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off their sentence while housed in a Secured Housing Unit (SHU), Psychiatric

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Services Unit (PSU) or Administrative Segregation Unit (ASG).

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Petitioner unsuccessfully sought relief from the state courts until the

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Supreme Court of California denied review of his final state habeas petition on

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March 14, 2012.

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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.

Claims
Petitioner claims that the retroactive application of changes in section

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2933.6 to him violate his plea agreement, and ex post facto and due process

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principles. Liberally construed, petitioner's claims appear minimally cognizable

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under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247

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F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for

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writs of habeas corpus liberally); see also Lynce v. Mathis, 519 U.S. 433, 437-39,

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447-49 (1997) (retroactive cancellation of prison credits has impermissible effect

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

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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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2.

Respondent shall file with the court and serve on petitioner, within

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

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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3.

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 shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 28 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 14 days

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of receipt of any opposition.

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4.

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: June 19, 2012
CHARLES R. BREYER
United States District Judge

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