Creswell v. Brazelton

Filing 5

ORDER TO SHOW CAUSE; ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Habeas Answer due by 4/29/2013. Signed by Judge Thelton E. Henderson on 02/26/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 2/27/2013)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ORLANDO CRESWELL, No. C-12-6219 TEH (PR) 8 Petitioner, 9 ORDER TO SHOW CAUSE; ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS v. United States District Court For the Northern District of California 10 P.D. BRAZELTON, Warden, 11 (Doc. #2) Respondent. 12 / 13 14 Petitioner Orlando Creswell, a state prisoner incarcerated 15 at Pleasant Valley State Prison in Coalinga, California, has filed a 16 17 18 19 20 pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Santa Clara County Superior Court. Doc. #1. forma pauperis. Doc. #2. I 21 According to the Petition, on May 7, 2010, Petitioner was 22 23 24 25 26 27 28 Petitioner also seeks leave to proceed in sentenced to fifty years to life, plus thirty-one years, in state prison following his convictions of two counts of robbery in an inhabited place, first degree burglary and battery. Exhs. 3-8. Doc. #1 at 2, Petitioner appealed his conviction to the California Court of Appeal, which remanded with directions to the trial court. Doc. #1 at 3. He filed a petition for review in the California 1 Supreme Court, which was denied in 2011. 2 indicates that the claims in his direct appeal are the same as those 3 that he is raising in this federal petition. Doc. #1 at 3. Petitioner Doc. #1 at 3-4. 4 On December 7, 2012, Petitioner filed the instant federal 5 Petition for a Writ of Habeas Corpus and moved for leave to proceed 6 in forma pauperis (IFP). 7 8 Doc. ##1, 2. II This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of 10 United States District Court For the Northern District of California 9 a State court only on the ground that he is in custody in violation 11 of the Constitution or laws or treaties of the United States.” 12 U.S.C. § 2254(a). 13 directing the respondent to show cause why the writ should not be 14 granted, unless it appears from the application that the applicant 15 or person detained is not entitled thereto.” 28 It shall “award the writ or issue an order Id. § 2243. 16 Petitioner seeks federal habeas corpus relief by alleging 17 that his due process rights were violated on the ground that he was 18 denied his right to have the jury determine the truth of his alleged 19 prior convictions and that the prosecution, by not meeting its 20 burden of ensuring that the jury made this finding, forfeited its 21 right to prosecute Petitioner’s prior convictions. 22 Liberally construed, Petitioner’s claim appears cognizable 23 under 28 U.S.C. § 2254 and merits an Answer from Respondent. 24 Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 25 must construe pro se petitions for writs of habeas corpus 26 liberally). 27 28 2 See 1 III 2 For the foregoing reasons and for good cause shown, 3 1. 4 (Doc. #2) is GRANTED. 5 2. Petitioner’s motion to proceed in forma pauperis The Clerk shall serve by certified mail a copy of 6 this Order and the Petition, and all attachments thereto (i.e., Doc. 7 #1), on Respondent and Respondent’s attorney, the Attorney General 8 of the State of California. 9 this Order on Petitioner. United States District Court For the Northern District of California 10 3. The Clerk also shall serve a copy of Respondent shall file with the Court and serve on 11 Petitioner, within sixty (60) days of the issuance of this Order, an 12 Answer conforming in all respects to Rule 5 of the Rules Governing 13 Section 2254 Cases, showing cause why a writ of habeas corpus should 14 not be granted. 15 Petitioner a copy of all portions of the state trial record that 16 have been transcribed previously and that are relevant to a 17 determination of the issues presented by the Petition. 18 Respondent shall file with the Answer and serve on If Petitioner wishes to respond to the Answer, he shall do 19 so by filing a Traverse with the Court and serving it on Respondent 20 within thirty (30) days of his receipt of the Answer. 21 4. In lieu of an Answer, Respondent may file a Motion to 22 Dismiss on procedural grounds, as set forth in the Advisory 23 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 24 If Respondent files such a motion, Petitioner shall file with the 25 Court and serve on Respondent an Opposition or Statement of 26 Non-Opposition within thirty (30) days of receipt of the motion, and 27 Respondent shall file with the Court and serve on Petitioner a Reply 28 3 1 within fifteen (15) days of receipt of any Opposition. 2 5. Petitioner is reminded that all communications with 3 the Court must be served on Respondent by mailing a true copy of the 4 document to Respondent’s counsel. 5 Court and all parties informed of any change of address. Petitioner also must keep the 6 7 IT IS SO ORDERED. 8 9 United States District Court For the Northern District of California 10 DATED 02/26/2013 THELTON E. HENDERSON United States District Judge 11 12 13 14 15 16 17 18 19 G:\PRO-SE\TEH\HC.12\Creswell 12-6219 OSC IFP.wpd 20 21 22 23 24 25 26 27 28 4

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