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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 GUSTOVO RODARTE, 11 Petitioner, 12 vs. 13 M.E. SPEARMAN, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) No. C 12-5340 JSW (PR) ORDER TO SHOW CAUSE 16 17 INTRODUCTION 18 Petitioner is a California prisoner proceeding pro se, and he has filed a pro se 19 habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the decision of the 20 California Board of Prison Terms (“Board”) to defer his next parole hearing for five years. 21 This order directs Respondent to show cause why the petition should not be granted. 22 BACKGROUND 23 Petitioner was convicted in 1985 of solicitation of murder and conspiracy to 24 commit murder. He was sentenced to a term of 29 years to life in state prison. The Board 25 found him unsuitable for parole in 2006 and again in 2011, and on both occasions, the 26 Board set his next parole eligibility hearing for five years away. He challenged the 2011 27 decision unsuccessfully in all three levels of the California Courts. Here he challenges the 28 2011 decision to delay his next parole eligibility hearing for five years. 1 2 DISCUSSION I 3 Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to 7 show cause why the writ should not be granted, unless it appears from the application that 8 the applicant or person detained is not entitled thereto.” Id. § 2243. 9 II 10 Legal Claims Petitioner claims that the decision to delay his next parole eligibility hearing, 11 pursuant to “Marsy’s Law” (Proposition 9) violates his rights under the Ex Post Facto 12 Clause. When liberally construed, Petitioner’s claim is sufficient to warrant a response 13 from Respondent. 14 CONCLUSION 15 For the foregoing reasons and for good cause shown, 16 1. The Clerk shall serve by certified mail a copy of this order and the petition, and 17 all attachments thereto, on Respondent and Respondent's attorney, the Attorney General 18 of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 19 2. Respondent shall file with the Court and serve on Petitioner, within ninety (90) 20 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 21 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 22 not be granted based upon the claim found cognizable above. Respondent shall file with 23 the answer and serve on Petitioner a copy of all portions of the state trial record that have 24 been transcribed previously and that are relevant to a determination of the issues presented 25 by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a 26 traverse with the Court and serving it on Respondent within thirty (30) days of the date 27 the answer is filed. 28 2 1 3. Respondent may, within ninety (90) days, file a motion to dismiss on 2 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to 3 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, 4 Petitioner shall file with the Court and serve on Respondent an opposition or statement of 5 non-opposition within thirty (30) days of the date the motion is filed, and Respondent 6 shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date 7 any opposition is filed. 8 9 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 10 of Change of Address.” He must comply with the Court’s orders in a timely fashion. 11 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 12 to Federal Rule of Civil Procedure 41(b). 13 IT IS SO ORDERED. 14 DATED: February 26, 2013 15 16 JEFFREY S. WHITE United States District Judge 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES DISTRICT COURT 28 FOR THE 1 NORTHERN DISTRICT OF CALIFORNIA 2 3 4 GUSTAVO RODARTE, Plaintiff, 5 6 7 8 Case Number: CV12-05340 JSW CERTIFICATE OF SERVICE v. M.E. SPEARMAN et al, Defendant. / 9 10 11 12 13 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. 14 15 16 Gustavo Rodarte C-72196 P.O. Box 689-YW-312 Soledad, CA 93960 17 Dated: February 26, 2013 18 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 4

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