Riley v. Grounds

Filing 4

ORDER TO SHOW CAUSE; ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Habeas Answer or Dispositive Motion due by 8/27/2013. Signed by Judge Thelton E. Henderson on 06/25/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 6/25/2013)

1
2
3
4
IN THE UNITED STATES DISTRICT COURT
5
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7
SHANNON RILEY,

No. C-13-2524 TEH (PR)

8
Petitioner,
9

ORDER TO SHOW CAUSE; ORDER
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS

v.
United States District Court
For the Northern District of California

10
RANDY GROUNDS, Warden,
11

(Doc. #3)
Respondent.

12
/
13
14
Petitioner Shannon Riley, a state prisoner incarcerated at
15
Salinas Valley State Prison (SVSP) in Soledad, California, has filed
16
17
18
19
20
21

a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
challenging the SVSP appeals coordinator's denial of Petitioner's
appeal to expunge an incorrect prior arrest as a sex offender from
his prison file.

in forma pauperis (IFP).

24
25
26
27
28

Petitioner also seeks leave to proceed
Doc. #2.
I

22
23

Doc. #1.

According to the Petition, on September 30, 2011,
Petitioner was taken to the Unit Classification Committee for a
program review because he had recently transferred to facility B
from facility D.

Petitioner received his written classification

chrono and noticed an entry stating that he had a prior arrest as a
sex offender.

This was incorrect because Petitioner never was

1

arrested or charged as a sex offender.

2

Petitioner spoke to his counselor to have this incorrect entry

3

expunged, but she informed him that he would have to file an appeal.

4

On October 4, 2011,

One week later, Petitioner filed an appeal to have the false

5

entry removed from his file.

6

Petitioner's appeal.

7

writ of habeas corpus in the Superior Court of Monterey County, the

8

Court of Appeal and the California Supreme Court.

9

were denied.

United States District Court
For the Northern District of California

10

The appeals coordinator "cancelled"

Thereafter, Petitioner filed petitions for a

All the petitions

On June 5, 2011, Petitioner filed the instant petition for a

11

writ of habeas corpus seeking expungement of the sex offender arrest

12

from his file.

13

v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (habeas corpus

14

jurisdiction exists when petitioner seeks expungement of

15

disciplinary finding from his record if expungement likely to

16

accelerate eligibility for parole).

17

II

18

Petitioner asserts habeas jurisdiction under Bostic

This Court may entertain a petition for a writ of habeas

19

corpus “in behalf of a person in custody pursuant to the judgment of

20

a State court only on the ground that he is in custody in violation

21

of the Constitution or laws or treaties of the United States.”

22

U.S.C. § 2254(a).

23

directing the respondent to show cause why the writ should not be

24

granted, unless it appears from the application that the applicant

25

or person detained is not entitled thereto.”

26
27
28

28

It shall “award the writ or issue an order

Id. § 2243.

Petitioner seeks federal habeas corpus relief by alleging
that his likelihood of getting released on parole is impaired due to
2

1

the false sex offender arrest in his prison file.

2

Chase, 393 F.3d 1024, 1028 (9th Cir. 2004), the Ninth Circuit

3

affirmed its previous holding that "habeas corpus jurisdiction . . .

4

exists when a petitioner seeks expungement of a disciplinary finding

5

from his record if expungement is likely to accelerate the

6

prisoner's eligibility for parole."

7

1269 and McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir. 1982)).

8
9

In Docken v.

(citing Bostic, 884 F.2d at

Liberally construed, Petitioner’s claim appears cognizable
under 28 U.S.C. § 2254 and merits an Answer from Respondent.

See

United States District Court
For the Northern District of California

10

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

11

must construe pro se petitions for writs of habeas corpus

12

liberally).

13

III

14

For the foregoing reasons and for good cause shown,

15

1.

16

(Doc. #3) is GRANTED.

17

2.

Petitioner’s motion to proceed in forma pauperis

The Clerk shall serve by certified mail a copy of

18

this Order and the Petition, and all attachments thereto (i.e., Doc.

19

#1), on Respondent and Respondent’s attorney, the Attorney General

20

of the State of California.

21

this Order on Petitioner.

22

3.

The Clerk also shall serve a copy of

Respondent shall file with the Court and serve on

23

Petitioner, within sixty-three (63) days of the issuance of this

24

Order, an Answer conforming in all respects to Rule 5 of the Rules

25

Governing Section 2254 Cases, showing cause why a writ of habeas

26

corpus should not be granted.

27

and serve on Petitioner a copy of all portions of the record that

28

Respondent shall file with the Answer

3

1

have been transcribed previously and that are relevant to a

2

determination of the issues presented by the Petition.

3

If Petitioner wishes to respond to the Answer, he shall do

4

so by filing a Traverse with the Court and serving it on Respondent

5

within twenty-eight (28) days of his receipt of the Answer.

6

4.

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

7

Dismiss on procedural grounds, as set forth in the Advisory

8

Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases.

9

If Respondent files such a motion, Petitioner shall file with the

United States District Court
For the Northern District of California

10

Court and serve on Respondent an Opposition or Statement of

11

Non-Opposition within twenty-eight (28) days of receipt of the

12

motion, and Respondent shall file with the Court and serve on

13

Petitioner a Reply within fourteen (14) days of receipt of any

14

Opposition.

15

5.

Petitioner is reminded that all communications with

16

the Court must be served on Respondent by mailing a true copy of the

17

document to Respondent’s counsel.

18

Court and all parties informed of any change of address.

Petitioner also must keep the

19
20

IT IS SO ORDERED.

21
22

DATED

06/25/2013
THELTON E. HENDERSON
United States District Judge

23
24
25
26
27
28

G:\PRO-SE\TEH\HC.13\Riley 1302524 OSC IFP.wpd

4