Creswell v. Brazelton
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ORLANDO CRESWELL,
No. C-12-6219 TEH (PR)
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Petitioner,
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ORDER TO SHOW CAUSE; ORDER
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS
v.
United States District Court
For the Northern District of California
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P.D. BRAZELTON, Warden,
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(Doc. #2)
Respondent.
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/
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Petitioner Orlando Creswell, a state prisoner incarcerated
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at Pleasant Valley State Prison in Coalinga, California, has filed a
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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.
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According to the Petition, on May 7, 2010, Petitioner was
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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
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Supreme Court, which was denied in 2011.
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indicates that the claims in his direct appeal are the same as those
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that he is raising in this federal petition.
Doc. #1 at 3.
Petitioner
Doc. #1 at 3-4.
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On December 7, 2012, Petitioner filed the instant federal
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Petition for a Writ of Habeas Corpus and moved for leave to proceed
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in forma pauperis (IFP).
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Doc. ##1, 2.
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This Court may entertain a petition for a writ of habeas
corpus “in behalf of a person in custody pursuant to the judgment of
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United States District Court
For the Northern District of California
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a State court only on the ground that he is in custody in violation
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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.
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Petitioner seeks federal habeas corpus relief by alleging
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that his due process rights were violated on the ground that he was
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denied his right to have the jury determine the truth of his alleged
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prior convictions and that the prosecution, by not meeting its
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burden of ensuring that the jury made this finding, forfeited its
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right to prosecute Petitioner’s prior convictions.
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Liberally construed, Petitioner’s claim appears cognizable
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under 28 U.S.C. § 2254 and merits an Answer from Respondent.
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Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts
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must construe pro se petitions for writs of habeas corpus
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liberally).
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See
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III
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For the foregoing reasons and for good cause shown,
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1.
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(Doc. #2) is GRANTED.
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2.
Petitioner’s motion to proceed in forma pauperis
The Clerk shall serve by certified mail a copy of
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this Order and the Petition, and all attachments thereto (i.e., Doc.
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#1), on Respondent and Respondent’s attorney, the Attorney General
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of the State of California.
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this Order on Petitioner.
United States District Court
For the Northern District of California
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3.
The Clerk also shall serve a copy of
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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4.
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
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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.
Petitioner is reminded that all communications with
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the Court must be served on Respondent by mailing a true copy of the
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document to Respondent’s counsel.
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Court and all parties informed of any change of address.
Petitioner also must keep the
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IT IS SO ORDERED.
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United States District Court
For the Northern District of California
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DATED
02/26/2013
THELTON E. HENDERSON
United States District Judge
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