King v. McEwen

Filing 4

ORDER TO SHOW CAUSE AND GRANTING IN FORMA PAUPERIS STATUS. Habeas Answer due by 1/7/2013. Signed by Judge Thelton E. Henderson on 11/05/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/6/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 No. C-12-5140 TEH (PR) KLINTON MICHAEL KING, Petitioner, ORDER TO SHOW CAUSE AND GRANTING IN FORMA PAUPERIS STATUS v. L.S. McEWEN, Warden, 15 Doc. #2 Respondent. 16 / 17 18 Petitioner, a state prisoner incarcerated at California 19 State Prison in Lancaster, California, has filed a pro se Petition 20 for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a 21 judgment of conviction from Lake County Superior Court. 22 He also applies for leave to proceed in forma pauperis, which the 23 Court grants. Doc. #2. 24 25 Doc. #1. I According to the Petition and the attached documents, 26 sometime in 2010, Petitioner pled guilty to two counts of lewd and 27 lascivious acts. 28 October 29, 2004 involving the same victim, Jane Doe, who is The charges stem from incidents that occurred on 1 Petitioner’s step-daughter. 2 Petitioner to ten years in prison. 3 conviction relief in the state appellate courts until the California 4 Supreme Court denied his petition for review on November 2, 2011. 5 The instant federal Petition for a Writ of Habeas Corpus followed. 6 7 On August 6, 2010, the court sentenced Petitioner sought post- II This Court may entertain a petition for a writ of habeas 8 corpus “in behalf of a person in custody pursuant to the judgment of 9 a State court only on the ground that he is in custody in violation United States District Court For the Northern District of California 10 of the Constitution or laws or treaties of the United States.” 11 U.S.C. § 2254(a). 12 directing the respondent to show cause why the writ should not be 13 granted, unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” 15 28 It shall “award the writ or issue an order Id. § 2243. It is difficult to ascertain exactly what claims 16 Petitioner asserts, but it appears that he seeks federal habeas 17 corpus relief on the following claims: 18 not voluntary because he was coerced into agreeing to it, he was on 19 mind altering drugs prescribed by his doctor, and the terms of the 20 plea bargain were misrepresented by public officials; 21 (2) ineffective assistance of counsel based on counsel’s failure to 22 communicate adequately with Petitioner, failure to interview 23 witnesses important to the defense, failure to show or take an 24 interest in Petitioner’s defense and failure to fulfill counsel’s 25 professional duties; and (3) violation of the ex post facto clause 26 regarding his sentencing. 27 appear cognizable under 28 U.S.C. § 2254 and merit an Answer from 28 (1) his plea of guilty was Liberally construed, Petitioner’s claims 2 1 Respondent. 2 2001) (federal courts must construe pro se petitions for writs of 3 habeas corpus liberally). 4 See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. Petitioner also alleges that the trial court erred by 5 entering an order prohibiting contact between himself and Jane Doe; 6 however, this claim states a violation of state law, not a violation 7 of the federal Constitution or laws or treaties of the United 8 States. 9 and is denied. Therefore, this claim is not cognizable on habeas review United States District Court For the Northern District of California 10 III 11 For the foregoing reasons and for good cause shown, 12 1. Petitioner’s application to proceed in forma pauperis 13 14 is granted. 2. The Clerk shall serve a copy of this Order and the 15 Petition, and all attachments thereto, on Respondent and 16 Respondent’s attorney, the Attorney General of the State of 17 California. 18 Petitioner. 19 The Clerk also shall serve a copy of this Order on 3. Respondent shall file with the Court and serve on 20 Petitioner, within sixty (60) days of the issuance of this Order, an 21 Answer conforming in all respects to Rule 5 of the Rules Governing 22 Section 2254 Cases, showing cause why a writ of habeas corpus should 23 not be granted. 24 Petitioner a copy of all portions of the state trial record that 25 have been transcribed previously and that are relevant to a 26 determination of the issues presented by the Petition. 27 28 Respondent shall file with the Answer and serve on If Petitioner wishes to respond to the Answer, he shall do 3 1 so by filing a Traverse with the Court and serving it on Respondent 2 within thirty (30) days of his receipt of the Answer. 3 Petitioner fail to do so, the Petition will be deemed submitted and 4 ready for decision thirty days after the date Petitioner is served 5 with Respondent’s Answer. 6 4. Should In lieu of an Answer, Respondent may file a Motion to 7 Dismiss on procedural grounds, as set forth in the Advisory 8 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 9 If Respondent files such a motion, Petitioner shall file with the United States District Court For the Northern District of California 10 Court and serve on Respondent an Opposition or Statement of 11 Non-Opposition within thirty (30) days of receipt of the motion, and 12 Respondent shall file with the Court and serve on Petitioner a Reply 13 within fifteen (15) days of receipt of any Opposition. 14 5. It is Petitioner’s responsibility to prosecute this 15 case. 16 must be served on Respondent by mailing a true copy of the document 17 to Respondent’s counsel. 18 all parties informed of any change of address. Petitioner is reminded that all communications with the Court Petitioner also must keep the Court and 19 20 IT IS SO ORDERED. 21 22 DATED 11/05/2012 THELTON E. HENDERSON United States District Judge 23 24 25 26 27 28 G:\PRO-SE\TEH\HC.12\King 12-5140-osc.wpd 4

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