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)

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