Peters v. Swarthout

Filing 7

ORDER TO SHOW CAUSE and granting 2 request to proceed in forma pauperis. Habeas Answer due by 8/20/2012.. Signed by Judge Charles R. Breyer on 6/19/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/20/2012)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11

REGGIE PETERS, AE0742,
Petitioner,

12
13
14
15

vs.
GARY SWARTHOUT, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. C 12-1668 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2)

16
17

Petitioner, a state prisoner incarcerated at California State Prison, Solano,

18

has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

19

challenging a sentence from Alameda County Superior Court. He also seeks to

20

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

21
22

BACKGROUND
Petitioner was convicted after a court trial of involuntary manslaughter,

23

enhanced by a finding that he personally used a firearm in the commission of that

24

crime, and of possession of a firearm by a felon. On June 18, 2010, he was

25

sentenced to 12 years in state prison.

26

Petitioner unsuccessfully appealed his sentence to the California Court of

27

Appeal. He also sought collateral relief from the Supreme Court of California,

28

which denied his state habeas petition on December 14, 2011.

1
2

DISCUSSION
A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

3
4

of a person in custody pursuant to the judgment of a State court only on the

5

ground that he is in custody in violation of the Constitution or laws or treaties of

6

the United States." 28 U.S.C. § 2254(a).

7

It shall "award the writ or issue an order directing the respondent to show

8

cause why the writ should not be granted, unless it appears from the application

9

that the applicant or person detained is not entitled thereto." Id. § 2243.

10

B.

Claims

11

Petitioner seeks federal habeas corpus relief on the ground that the

12

personal use enhancement is unlawful because the conduct underlying his

13

involuntary manslaughter conviction, brandishing a firearm, was only a

14

misdemeanor. He also claims that the aggravated term he received for personal

15

use of a firearm was an abuse of discretion. Liberally construed, the claims

16

appear minimally cognizable under § 2254 and merit an answer from respondent.

17

See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must

18

construe pro se petitions for writs of habeas corpus liberally).

19

CONCLUSION

20

For the foregoing reasons and for good cause shown,

21

1.

22
23

Petitioner's request to proceed in forma pauperis (docket # 2) is

GRANTED.
2.

The clerk shall serve a copy of this order and the petition and all

24

attachments thereto on respondent and respondent's attorney, the Attorney

25

General of the State of California. The clerk also shall serve a copy of this order

26

on petitioner.

27
28

2

1

3.

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

2

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

3

5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

4

habeas corpus should not be granted. Respondent shall file with the answer and

5

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

6

transcribed previously and that are relevant to a determination of the issues

7

presented by the petition.

8
9
10
11

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.
4.

Respondent may file a motion to dismiss on procedural grounds in

12

lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

13

Rules Governing Section 2254 Cases. If respondent files such a motion,

14

petitioner must serve and file an opposition or statement of non-opposition not

15

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

16

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

17

served and filed.

18

5.

Petitioner is reminded that all communications with the court must

19

be served on respondent by mailing a true copy of the document to respondent's

20

counsel. Petitioner must also keep the court and all parties informed of any

21

change of address.

22

SO ORDERED.

23

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

24
25
26
G:\PRO-SE\CRB\HC.12\Peters, R.12-1668.osc.wpd

27
28

3