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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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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,

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Doc. #2

Respondent.

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/

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Petitioner, a state prisoner incarcerated at California

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State Prison in Lancaster, California, has filed a pro se Petition

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for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a

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judgment of conviction from Lake County Superior Court.

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He also applies for leave to proceed in forma pauperis, which the

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Court grants.

Doc. #2.

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Doc. #1.

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According to the Petition and the attached documents,

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sometime in 2010, Petitioner pled guilty to two counts of lewd and

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lascivious acts.

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October 29, 2004 involving the same victim, Jane Doe, who is

The charges stem from incidents that occurred on

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Petitioner’s step-daughter.

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Petitioner to ten years in prison.

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conviction relief in the state appellate courts until the California

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Supreme Court denied his petition for review on November 2, 2011.

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The instant federal Petition for a Writ of Habeas Corpus followed.

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On August 6, 2010, the court sentenced
Petitioner sought post-

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This Court may entertain a petition for a writ of habeas

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corpus “in behalf of a person in custody pursuant to the judgment of

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a State court only on the ground that he is in custody in violation

United States District Court
For the Northern District of California

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of the Constitution or laws or treaties of the United States.”

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U.S.C. § 2254(a).

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directing the respondent to show cause why the writ should not be

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granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.”

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It shall “award the writ or issue an order

Id. § 2243.

It is difficult to ascertain exactly what claims

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Petitioner asserts, but it appears that he seeks federal habeas

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corpus relief on the following claims:

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not voluntary because he was coerced into agreeing to it, he was on

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mind altering drugs prescribed by his doctor, and the terms of the

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plea bargain were misrepresented by public officials;

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(2) ineffective assistance of counsel based on counsel’s failure to

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communicate adequately with Petitioner, failure to interview

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witnesses important to the defense, failure to show or take an

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interest in Petitioner’s defense and failure to fulfill counsel’s

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professional duties; and (3) violation of the ex post facto clause

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regarding his sentencing.

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appear cognizable under 28 U.S.C. § 2254 and merit an Answer from

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(1) his plea of guilty was

Liberally construed, Petitioner’s claims

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Respondent.

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2001) (federal courts must construe pro se petitions for writs of

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habeas corpus liberally).

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

Petitioner also alleges that the trial court erred by

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entering an order prohibiting contact between himself and Jane Doe;

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however, this claim states a violation of state law, not a violation

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of the federal Constitution or laws or treaties of the United

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States.

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and is denied.

Therefore, this claim is not cognizable on habeas review

United States District Court
For the Northern District of California

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III

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For the foregoing reasons and for good cause shown,

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1. Petitioner’s application to proceed in forma pauperis

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is granted.
2.

The Clerk shall serve a copy of this Order and the

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Petition, and all attachments thereto, on Respondent and

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Respondent’s attorney, the Attorney General of the State of

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California.

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Petitioner.

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The Clerk also shall serve a copy of this Order on

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Respondent shall file with the Court and serve on

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Petitioner, within sixty (60) days of the issuance of this Order, an

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Answer conforming in all respects to Rule 5 of the Rules Governing

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

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not be granted.

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Petitioner a copy of all portions of the state trial record that

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have been transcribed previously and that are relevant to a

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determination of the issues presented by the Petition.

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Respondent shall file with the Answer and serve on

If Petitioner wishes to respond to the Answer, he shall do
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so by filing a Traverse with the Court and serving it on Respondent

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within thirty (30) days of his receipt of the Answer.

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Petitioner fail to do so, the Petition will be deemed submitted and

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ready for decision thirty days after the date Petitioner is served

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with Respondent’s Answer.

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4.

Should

In lieu of an Answer, Respondent may file a Motion to

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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.

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If Respondent files such a motion, Petitioner shall file with the

United States District Court
For the Northern District of California

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Court and serve on Respondent an Opposition or Statement of

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Non-Opposition within thirty (30) days of receipt of the motion, and

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Respondent shall file with the Court and serve on Petitioner a Reply

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within fifteen (15) days of receipt of any Opposition.

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5.

It is Petitioner’s responsibility to prosecute this

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case.

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must be served on Respondent by mailing a true copy of the document

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to Respondent’s counsel.

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all parties informed of any change of address.

Petitioner is reminded that all communications with the Court

Petitioner also must keep the Court and

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IT IS SO ORDERED.

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DATED

11/05/2012
THELTON E. HENDERSON
United States District Judge

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