Davis v. Gower et al

Filing 2

ORDER TO SHOW CAUSE; DIRECTIONS TO CLERK TO AMEND DOCKET. Signed by Judge Richard Seeborg on 8/27/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/27/2012)

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*E-Filed 8/27/12*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JESSE DAVIS,

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Petitioner,

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ORDER TO SHOW CAUSE;

v.

DIRECTIONS TO CLERK TO
AMEND DOCKET

B. GOWER, Warden,

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United States District Court
For the Northern District of California

No. C 12-2221 RS (PR)

Respondent.

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/

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INTRODUCTION

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This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243

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and Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid.
BACKGROUND

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According to the petition, in 2009, an Alameda County Superior Court jury convicted

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petitioner of second degree murder. He received a sentence of 16 years-to-life in state

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prison.

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No. C 12-2221 RS (PR)
ORDER TO SHOW CAUSE

DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
As grounds for federal habeas relief, petitioner claims the trial court violated his right

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to due process by suppressing evidence. When liberally construed, this claim appears to be

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cognizable on federal habeas review.

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CONCLUSION
1. The Clerk shall serve by certified mail a copy of this order, the petition and all

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attachments thereto, on respondent and respondent’s counsel, the Attorney General for the

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State of California. The Clerk shall also 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 date this order is filed, 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 not

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be granted based on petitioner’s cognizable claims. Respondent shall file with the answer

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

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

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petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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No. C 12-2221 RS (PR)
ORDER TO SHOW CAUSE

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4. In lieu of an answer, respondent may file, within ninety (90) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

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such a motion, petitioner shall file with the Court and serve on respondent an opposition or

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

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

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the date any opposition is filed.

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.
8. The Clerk shall amend the docket to reflect that B. Gower, the warden of the prison

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in which petitioner is housed, is the sole respondent in this action. Petitioner erroneously

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also named as respondent Matthew Cate, Director of the California Department of

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Corrections and Rehabilitation. Gower, not Cate, is the sole proper respondent in this action,

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as he is the custodian having day-to-day control over petitioner, the only person who can

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produce “the body” of the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th

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Cir. 1992) (quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)).

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IT IS SO ORDERED.
DATED: August 27, 2012
RICHARD SEEBORG
United States District Judge

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No. C 12-2221 RS (PR)
ORDER TO SHOW CAUSE