Scott v. Hill

Filing 6

ORDER TO SHOW CAUSE. Habeas Answer due by 4/15/2013. Signed by Judge Thelton E. Henderson on 02/11/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 2/12/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PATRICK SCOTT,
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No. C-13-0245 TEH (PR)
Petitioner,

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ORDER TO SHOW CAUSE

v.
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RICK M. HILL, Warden,
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Respondent.
United States District Court
For the Northern District of California

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/

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Petitioner Patrick Scott, a state prisoner incarcerated at

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Folsom State Prison, Folsom, California, has filed a pro se Petition

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for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a

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judgment of conviction from Alameda County Superior Court.

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Petitioner has paid the $5.00 filing fee.

Doc. #1.

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I

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According to the Petition, in April 1992, Petitioner was

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sentenced to twenty-six years to life pursuant to a conviction of

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aiding and abetting murder.

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Petitioner sought post-conviction relief in the California Supreme

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Court, which denied the petition on November 20, 2012.

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4, 7.

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followed.

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based on new evidence of a ballistic test that was not available at

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trial; (2) prosecutorial misconduct based on a violation of Brady v.

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Maryland, 373 U.S. 83 (1963); and (3) equitable tolling based on

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ineffective assistance of counsel.

Doc. #1 at ii.

In July 2012,

Doc. #1 at

The instant federal Petition for a Writ of Habeas Corpus
He raises the following claims: (1) factual innocence

He also asserts that he has

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shown cause for his procedural default in state court.

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viii.

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Doc. #1 at

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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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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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United States District Court
For the Northern District of California

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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.

Liberally construed, Petitioner’s claims appear cognizable

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under 28 U.S.C. § 2254 and merit 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

III

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For the foregoing reasons and for good cause shown,

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1.

The Clerk shall serve by certified mail a copy of

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this Order and the Petition, and all attachments thereto (Docs. ##1-

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3), on Respondent and Respondent’s attorney, the Attorney General of

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the State of California.

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Order on Petitioner.

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2.

The Clerk also shall serve a copy of this

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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3.

In lieu of an Answer, Respondent may file a Motion to

Dismiss on procedural grounds, as set forth in the Advisory

United States District Court
For the Northern District of California

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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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4.

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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DATED

02/11/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.13\Scott 13-0245-osc.wpd

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