Rodarte v. Spearman

Filing 9

ORDER TO SHOW CAUSE Habeas Answer due by 5/28/2013.. Signed by Judge Jeffrey S. White on 2/26/13. (jjoS, COURT STAFF) (Filed on 2/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GUSTOVO RODARTE,

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Petitioner,

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vs.

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M.E. SPEARMAN, Warden,

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Respondent.

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No. C 12-5340 JSW (PR)
ORDER TO SHOW CAUSE

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INTRODUCTION

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Petitioner is a California prisoner proceeding pro se, and he has filed a pro se

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habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the decision of the

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California Board of Prison Terms (“Board”) to defer his next parole hearing for five years.

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This order directs Respondent to show cause why the petition should not be granted.

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BACKGROUND

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Petitioner was convicted in 1985 of solicitation of murder and conspiracy to

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commit murder. He was sentenced to a term of 29 years to life in state prison. The Board

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found him unsuitable for parole in 2006 and again in 2011, and on both occasions, the

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Board set his next parole eligibility hearing for five years away. He challenged the 2011

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decision unsuccessfully in all three levels of the California Courts. Here he challenges the

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2011 decision to delay his next parole eligibility hearing for five years.

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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 of a

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

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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

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

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II

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Legal Claims
Petitioner claims that the decision to delay his next parole eligibility hearing,

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pursuant to “Marsy’s Law” (Proposition 9) violates his rights under the Ex Post Facto

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Clause. When liberally construed, Petitioner’s claim is sufficient to warrant a response

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from Respondent.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall 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 issuance of this order, 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

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not be granted based upon the claim found cognizable above. Respondent shall file with

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the answer and serve on Petitioner a copy of all portions of the state trial record that have

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

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by the petition. 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 thirty (30) days of the date

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the answer is filed.

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3. Respondent may, within ninety (90) days, file a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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

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Petitioner shall file with the Court and serve on Respondent an opposition or statement of

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

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

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any opposition is filed.

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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: February 26, 2013

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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GUSTAVO RODARTE,
Plaintiff,

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Case Number: CV12-05340 JSW
CERTIFICATE OF SERVICE

v.
M.E. SPEARMAN et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 26, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Gustavo Rodarte C-72196
P.O. Box 689-YW-312
Soledad, CA 93960

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Dated: February 26, 2013

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk

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