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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RUBEN JACOB MATUK, ORDER TO SHOW CAUSE v. 12 13 No. C 13-0204 WHA (PR) Petitioner, 11 For the Northern District of California United States District Court 10 MARTIN HOSHINO, Respondent. 14 / 15 INTRODUCTION 16 Petitioner, a California prisoner incarcerated at Pelican Bay State Prison, filed this pro 17 18 se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging his conviction 19 and sentence. He has paid the filing fee. For the reasons discussed below, respondent is 20 ordered to show cause why the petition should not be granted. STATEMENT 21 22 Petitioner was convicted in San Benito County Superior Court on a number of counts of 23 sex offenses involving minors. He received a sentence of 11 years and 8 months in state prison. 24 The California Court of Appeal and the California Supreme Court denied his appeals. ANALYSIS 25 26 A. STANDARD OF REVIEW 27 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 28 custody pursuant to the judgment of a State court only on the ground that he is in custody in 1 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 2 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 3 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 4 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 5 court must “specify all the grounds for relief which are available to the petitioner ... and shall 6 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 7 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 8 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 9 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). 11 For the Northern District of California United States District Court 10 B. 12 LEGAL CLAIMS Petitioner claims that there was insufficient evidence to support the trial court’s finding, 13 for purposes of sentencing, that the offenses involved violence. When liberally construed, this 14 claim is sufficient to warrant an answer from Respondent. 15 CONCLUSION 16 1. The clerk shall mail a copy of this order and the petition with all attachments to the 17 respondent and the respondent's attorney, the Attorney General of the State of California. The 18 clerk shall also serve a copy of this order on the petitioner. 19 2. Respondent shall file with the court and serve on petitioner, within ninety days of the 20 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 21 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 22 the claims found cognizable herein. Respondent shall file with the answer and serve on 23 petitioner a copy of all portions of the state trial record that have been transcribed previously 24 and that are relevant to a determination of the issues presented by the petition. 25 26 27 28 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 2 1 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 2 court and serve on respondent an opposition or statement of non-opposition within thirty days 3 of the date the motion is filed, and respondent shall file with the court and serve on petitioner a 4 reply within fifteen days of the date any opposition is filed. 5 4. Petitioner is reminded that all communications with the court must be served on 6 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 7 keep the court informed of any change of address and must comply with the court's orders in a 8 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 9 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 11 For the Northern District of California United States District Court 10 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). IT IS SO ORDERED. 12 13 Dated: February 28 , 2013. 14 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 G:\PRO-SE\WHA\HC.13\MATUK0204.OSC.wpd 25 26 27 28 3

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