Fearence v. Grounds

Filing 6

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 8/12/2013.. Signed by Judge Charles R. Breyer on 6/12/13. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 6/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JACQUES FEARENCE, V51385,
Petitioner,

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vs.

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R. GROUNDS, Warden,

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Respondent.

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No. C 13-1372 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 4)

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Petitioner, a state prisoner incarcerated at Salinas Valley State Prison

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(SVSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254 challenging a prison disciplinary finding that resulted in the loss of 130

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days of time credit. He also seeks leave to proceed in forma pauperis under 28

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U.S.C. § 1915.

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DISCUSSION
A.

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 ground that the

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disciplinary panel's finding that he was in possession of a controlled substance in

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prison, and subsequent assessment of time credits, does not comport with due

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process. Petitioner specifically claims that the panel's denial of his request to

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present a witness at the hearing deprived him of an opportunity to present an

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adequate defense under Wolff v. McDonnell, 418 U.S. 539 (1974). Liberally

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construed, the claim appears cognizable under § 2254 and merits an answer from

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respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal

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courts must construe pro se petitions for writs of habeas corpus liberally).
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 # 4) is

GRANTED.
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The clerk shall serve by certified mail a copy of this order and the

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petition and all attachments thereto on respondent and respondent's attorney, the

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

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this order 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

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

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 shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 28 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 14 days

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of receipt of any opposition.

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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: June 12, 2013
CHARLES R. BREYER
United States District Judge

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N:\Fearence, J.13-1372.osc.wpd

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