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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEON DAMIEN BENAVIDEZ,

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Petitioner,

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vs.

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PAT VASQUEZ, Warden,

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Respondent.

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No. C 12-2161 JSW (PR)
ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS

(Docket Nos. 2 & 5)

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INTRODUCTION

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Petitioner is a California prisoner proceeding pro se, and he has filed a pro se

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habeas corpus petition pursuant to 28 U.S.C. § 2254. He has applied for leave to proceed

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in forma pauperis. This order directs Respondent to show cause why the petition should

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not be granted.

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BACKGROUND

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Based on his guilty plea, Petitioner was convicted in Santa Clara County Superior

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Court of receiving a stolen car. The trial court sentenced him to a term of 44 months in

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state prison based upon this conviction and a sentence enhancement for prior convictions.

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Petitioner’s appeals to the California Court of Appeal and the Supreme Court of

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California were denied.

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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 of a

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person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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

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

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II

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Legal Claims
As grounds for federal habeas relief, Petitioner claims: (1) his sentence was not

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authorized because it included a one-year sentence enhancement for a prior theft

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conviction that had been dismissed; and (2) the prosecutor committed misconduct by

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negotiating the plea agreement without telling Petitioner that the prior theft conviction

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was dismissed. Petitioner’s claims are sufficient to warrant a response from Respondent.

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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 by certified mail a copy of this order and the petition, and

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

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2. Respondent shall file with the Court and serve on Petitioner, within ninety (90)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted based upon the claims found cognizable above. Respondent shall file with

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the answer and serve on Petitioner a copy of all portions of the state trial record that have

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

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by the petition. 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 thirty (30) days of the date

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the answer is filed.
3. Respondent may, within ninety (90) days, file a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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Rule 4 of the 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 statement of

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non-opposition within thirty (30) days of the date the motion is filed, and Respondent

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shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date

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any opposition is filed.

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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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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

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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LEON DAMIEN BENAVIDEZ,
Plaintiff,

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Case Number: CV12-02161 JSW
CERTIFICATE OF SERVICE

v.
PAT VASQUEZ et al,
Defendant.

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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.

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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