Cole

Filing 6

ORDER TO SHOW CAUSE Habeas Answer due by 1/14/2013.. Signed by Judge Charles R. Breyer on 11/7/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 11/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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DAPHNE COLE, WA 7462,

vs.
RON DAVIS, Acting Warden,

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Respondent.

No. C 12-2854 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 1 & 4)

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Petitioner, a state prisoner at Valley State Prison for Women, has filed a

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

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conviction from Alameda County Superior Court. Petitioner also seeks "tolling"

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of the limitation period and leave to proceed in forma pauperis under 28 U.S.C. §

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1915.

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BACKGROUND

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Petitioner pleaded no contest to three counts of robbery and two gun

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enhancement allegations. On or about October 27, 2010, she was sentenced to 20

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years and four months in state prison.

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Petitioner did not appeal, but unsuccessfully challenged her conviction in

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the state courts by filing several petitions for a writ of habeas corpus. According

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to her federal petition, the Supreme Court of California denied her final state

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petition on March 26, 2012.

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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

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

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

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

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

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

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

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B.

Claims
Petitioner seeks federal habeas corpus relief on the grounds that her plea

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was not voluntary and intelligent, and that counsel did not provide her with

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effective assistance. It well established that the only challenges left open in

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federal habeas corpus after a plea of guilty (or no contest) is the voluntary and

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intelligent character of the plea and the nature of the advice of counsel to plead.

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Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Liberally construed, petitioner's

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claims appear minimally cognizable under § 2254 and merit an answer from

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

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

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

Petitioner's request to proceed in forma pauperis (docket # 4) is

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GRANTED. But her request for "tolling" of the limitation period (docket # 1) is

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DENIED as premature.

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2.

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

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

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

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on petitioner.

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3.

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

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

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

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

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

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

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presented by the petition.

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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 30 days of his receipt

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of the answer.

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4.

Respondent may file a motion to dismiss on procedural grounds in

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

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

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

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

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

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served and filed.

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5.

Petitioner is reminded that all communications with the court must

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

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

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change of address.

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SO ORDERED.

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DATED:

Nov. 7, 2012
CHARLES R. BREYER
United States District Judge

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