Smith v. California Department of Corrections et al

Filing 6

ORDER TO SHOW CAUSE. Dispositive Motion due by 6/14/2013. Signed by Judge Richard Seeborg on 3/11/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 3/11/2013) Modified on 3/11/2013 (cl, COURT STAFF).

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1 2 3 *E-Filed 3/11/13* 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 DARRYL B. SMITH, 13 14 15 United States District Court For the Northern District of California 16 No. C 12-5890 RS (PR) Petitioner, ORDER TO SHOW CAUSE v. RALPH M. DIAZ, Warden, Respondent. 17 / 18 INTRODUCTION 19 20 This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se 21 state prisoner. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243 22 and Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid. 23 Respondent shall file an answer or dispositive motion on or before June 15, 2013, unless 24 an extension is granted. 25 BACKGROUND 26 According to the petition, in 2012, petitioner pleaded guilty in the San Francisco 27 28 County Superior Court to a charge of second degree robbery. He received a sentence of 13 No. C 12-5890 RS (PR) ORDER TO SHOW CAUSE 1 years in state prison. DISCUSSION 2 3 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 A district court considering an application for a writ of habeas corpus shall “award the writ 7 or issue an order directing the respondent to show cause why the writ should not be granted, 8 unless it appears from the application that the applicant or person detained is not entitled 9 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 10 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 11 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 12 As grounds for federal habeas relief, petitioner claims that (1) defense counsel 13 rendered ineffective assistance; and (2) his mental illness rendered his plea constitutionally 14 invalid. When liberally construed, these claims appear to be cognizable on federal habeas 15 review. 16 17 CONCLUSION 1. The Clerk shall serve by certified mail a copy of this order, the petition and all 18 attachments thereto, on respondent and respondent’s counsel, the Attorney General for the 19 State of California. The Clerk shall also serve a copy of this order on petitioner. 20 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) 21 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 22 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 23 be granted based on petitioner’s cognizable claims. Respondent shall file with the answer 24 and serve on petitioner a copy of all portions of the state trial record that previously have 25 been transcribed and that are relevant to a determination of the issues presented by the 26 petition. 27 28 2 No. C 12-5890 RS (PR) ORDER TO SHOW CAUSE 1 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 3 answer is filed. 4 4. In lieu of an answer, respondent may file, within ninety (90) days of the date this 5 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 6 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files 7 such a motion, petitioner shall file with the Court and serve on respondent an opposition or 8 statement of non-opposition within thirty (30) days of the date the motion is filed, and 9 respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of 10 11 12 13 the date any opposition is filed. 5. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 14 Court and respondent informed of any change of address and must comply with the Court’s 15 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 16 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 18 19 20 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend. IT IS SO ORDERED. DATED: March 11, 2013 RICHARD SEEBORG United States District Judge 21 22 23 24 25 26 27 28 3 No. C 12-5890 RS (PR) ORDER TO SHOW CAUSE

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