Rosales v. Grounds

Filing 3

ORDER TO SHOW CAUSE and Order granting 2 MOTION for Leave to Proceed in forma pauperis filed by Dathan Michael Rosales. Habeas Answer due by 7/29/2013. Signed by Judge Charles R. Breyer on 5/21/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 5/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DATHAN M. ROSALES, V-57349,
Petitioner,

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vs.
M. SPEARMAN, Acting Warden,
Respondent.

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No. C 13-0404 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2)

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Petitioner, a state prisoner incarcerated at the Correctional Training

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Facility in Soledad, California, has filed a pro se petition for a writ of habeas

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corpus under 28 U.S.C. § 2254 challenging a criminal sentence from Alameda

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County Superior Court. Petitioner also seeks to proceed in forma pauperis under

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28 U.S.C. § 1915.

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BACKGROUND
Petitioner pleaded guilty to making terrorist threats and admitted that he

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used a firearm. On or about December 21, 2010, he was sentenced to two years

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for the terrorist threats counts and four years for the firearm enhancement for a

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total of six years in state prison. Petitioner did not appeal; instead, he collaterally

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challenged his sentence via state habeas. On July 11, 2012, the Supreme Court of

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California denied his final petition for state habeas relief.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims

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Petitioner seeks federal habeas corpus relief on the grounds that he

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received ineffective assistance of counsel in connection with his plea and

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sentence, and that he was improperly denied good behavior and work time

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credits. Liberally construed, the claims appear arguably cognizable under § 2254

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and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020

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(9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas

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corpus liberally).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 2) is

GRANTED.

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2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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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 30 days of his receipt
of the answer.
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Respondent may file a motion to dismiss on procedural grounds in

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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent's

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED:

May 21, 2013
CHARLES R. BREYER
United States District Judge

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