Wysinger v. Chappell et al

Filing 3

ORDER TO SHOW CAUSE. Signed by Judge Richard Seeborg on 7/19/12. (cl, COURT STAFF) (Filed on 7/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Petitioner,
ORDER TO SHOW CAUSE

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For the Northern District of California

United States District Court

No. C 12-03679 RS

AARON WYSINGER,

v.

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WARDEN KEVIN CHAPPELL, et al.,

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Respondents.
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I. INTRODUCTION

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Petitioner Aaaron Wysinger filed this action for a writ of habeas corpus, per 28 U.S.C. §

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2254. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of

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the Rules Governing Section 2254 Cases. Petitioner has paid the filing fee.
II. BACKGROUND

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According to the petition, petitioner plead no contest to two counts of violating California

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Penal Code § 245(a)(2), assault with a firearm, and admitted two enhancements. He alleges he was

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sentenced to a term of ten years.

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III. 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). A

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

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order directing the respondent to show cause why the writ should not be granted, unless it appears
NO. C 12-03679 RS
ORDER TO SHOW CAUSE

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

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Cir. 1990).

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Here, as grounds for federal habeas relief, petitioner alleges: (1) that his plea was not entered

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into knowingly and voluntarily; and (2) he received ineffective assistance of counsel. Liberally

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construed, these claims appear to be cognizable in a federal habeas action.
IV. CONCLUSION

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For the Northern District of California

United States District Court

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1. Counsel for petitioner shall serve a copy of this Order and the petition and all attachments
thereto, on respondent and respondent’s counsel, the Attorney General for the State of California.
2. Within ninety (90) days of receiving service of this Order, Respondent shall file an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be granted based on petitioner’s cognizable claims.

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Respondent shall file with the answer a copy of all portions of the state trial record that previously

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

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3. Petitioner shall file any traverse within thirty (30) days of the date the answer is filed.

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4. In lieu of an answer, respondent may file, within ninety (90) days of receiving service of

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this Order, a motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes

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to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner

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shall file an opposition or statement of non-opposition within thirty (30) days of the date the motion

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is filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen (15)

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days of the date any opposition is filed.

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IT IS SO ORDERED.

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Dated: 7/19/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 12-03679 RS
ORDER TO SHOW CAUSE

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