Benavidez v. Vasquez
Filing
6
ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge JEFFREY S. WHITE on 6/11/12. (jjoS, COURT STAFF) (Filed on 6/11/2012)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10
LEON DAMIEN BENAVIDEZ,
11
Petitioner,
12
vs.
13
PAT VASQUEZ, Warden,
14
Respondent.
15
)
)
)
)
)
)
)
)
)
)
)
No. C 12-2161 JSW (PR)
ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS
(Docket Nos. 2 & 5)
16
17
INTRODUCTION
18
Petitioner is a California prisoner proceeding pro se, and he has filed a pro se
19
habeas corpus petition pursuant to 28 U.S.C. § 2254. He has applied for leave to proceed
20
in forma pauperis. This order directs Respondent to show cause why the petition should
21
not be granted.
22
BACKGROUND
23
Based on his guilty plea, Petitioner was convicted in Santa Clara County Superior
24
Court of receiving a stolen car. The trial court sentenced him to a term of 44 months in
25
state prison based upon this conviction and a sentence enhancement for prior convictions.
26
Petitioner’s appeals to the California Court of Appeal and the Supreme Court of
27
California were denied.
28
//
1
2
DISCUSSION
I
3
Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a
4
person in custody pursuant to the judgment of a State court only on the ground that he is
5
in custody in violation of the Constitution or laws or treaties of the United States.” 28
6
U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to
7
show cause why the writ should not be granted, unless it appears from the application that
8
the applicant or person detained is not entitled thereto.” Id. § 2243.
9
II
10
Legal Claims
As grounds for federal habeas relief, Petitioner claims: (1) his sentence was not
11
authorized because it included a one-year sentence enhancement for a prior theft
12
conviction that had been dismissed; and (2) the prosecutor committed misconduct by
13
negotiating the plea agreement without telling Petitioner that the prior theft conviction
14
was dismissed. Petitioner’s claims are sufficient to warrant a response from Respondent.
15
CONCLUSION
16
For the foregoing reasons and for good cause shown,
17
1. The Clerk shall serve by certified mail a copy of this order and the petition, and
18
all attachments thereto, on Respondent and Respondent's attorney, the Attorney General
19
of the State of California. The Clerk also shall serve a copy of this order on Petitioner.
20
2. Respondent shall file with the Court and serve on Petitioner, within ninety (90)
21
days of the issuance of this order, an answer conforming in all respects to Rule 5 of the
22
Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should
23
not be granted based upon the claims found cognizable above. Respondent shall file with
24
the answer and serve on Petitioner a copy of all portions of the state trial record that have
25
been transcribed previously and that are relevant to a determination of the issues presented
26
by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a
27
traverse with the Court and serving it on Respondent within thirty (30) days of the date
28
2
1
2
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
15
16
17
18
19
5. The application to proceed in forma pauperis (docket numbers 2 & 5) is
GRANTED in light of Petitioner’s lack of funds.
IT IS SO ORDERED.
DATED: June 11, 2012
JEFFREY S. WHITE
United States District Judge
20
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
LEON DAMIEN BENAVIDEZ,
Plaintiff,
7
8
9
10
Case Number: CV12-02161 JSW
CERTIFICATE OF SERVICE
v.
PAT VASQUEZ 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 June 11, 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
Leon D. Benavidez
North Kern State Prison
P.O. Box 5000
Delano, CA 93216-5000
Dated: June 11, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?