Benavidez v. Vasquez

Filing 6


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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 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

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