Matuk v. Hoshino

Filing 3

ORDER TO SHOW CAUSE Habeas Answer due by 5/29/2013.. Signed by Judge William Alsup on 2/28/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 2/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RUBEN JACOB MATUK,

ORDER TO SHOW CAUSE

v.

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No. C 13-0204 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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MARTIN HOSHINO,
Respondent.

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INTRODUCTION

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Petitioner, a California prisoner incarcerated at Pelican Bay State Prison, filed this pro

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se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging his conviction

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and sentence. He has paid the filing fee. For the reasons discussed below, respondent is

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ordered to show cause why the petition should not be granted.
STATEMENT

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Petitioner was convicted in San Benito County Superior Court on a number of counts of

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sex offenses involving minors. He received a sentence of 11 years and 8 months in state prison.

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The California Court of Appeal and the California Supreme Court denied his appeals.
ANALYSIS

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A.

STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d
688, 689 (1st Cir. 1970)).

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For the Northern District of California

United States District Court

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B.

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LEGAL CLAIMS
Petitioner claims that there was insufficient evidence to support the trial court’s finding,

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for purposes of sentencing, that the offenses involved violence. When liberally construed, this

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claim is sufficient to warrant an answer from Respondent.

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CONCLUSION

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1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within ninety days of the

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issuance of this order, an 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 not be granted based on

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the claims found cognizable herein. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state trial record that have been transcribed previously

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and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within thirty days of the date the answer is filed.
3. Respondent may file, within ninety days, a motion to dismiss on procedural grounds
in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases. 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 non-opposition within thirty days

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of the date the motion is filed, and respondent shall file with the court and serve on petitioner a

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reply within fifteen days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

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keep the court informed of any change of address and must comply with the court's orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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For the Northern District of California

United States District Court

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
IT IS SO ORDERED.

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Dated: February

28 , 2013.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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