Fearence v. Grounds
Filing
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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.
2.
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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