Hall v. Virga

Filing 9

ORDER to Show Cause. Respondent to file and serve upon Petitioner his Answer by 12/20/2013. Petitioner to file and serve upon Respondent his Traverse by 1/31/2014. Signed by Judge Edward M. Chen on 10/25/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 10/25/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 MONTRELL HALL, 9 Petitioner, v. ORDER TO SHOW CAUSE 11 For the Northern District of California United States District Court 10 No. C-13-2531 EMC (pr) T. VIRGA, Warden, 12 Respondent. ___________________________________/ 13 14 15 I. INTRODUCTION 16 Petitioner, an inmate at the California State Prison - Solano, filed this pro se action seeking a 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review 18 pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United 19 States District Courts. 20 21 II. BACKGROUND The petition provides the following information: Petitioner was convicted in Contra Costa 22 County Superior Court of first degree murder, first degree robbery, residential burglary, and was 23 found to have acted in concert in the commission of those crimes. On October 23, 2009, Petitioner 24 was sentenced to a term of life imprisonment without the possibility of parole. He unsuccessfully 25 appealed his conviction. Petitioner also filed one or more petitions for writ of habeas corpus in state 26 court that were unsuccessful. Petitioner then filed this action. 27 28 1 2 III. DISCUSSION This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 3 custody pursuant to the judgment of a State court only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 5 district court considering an application for a writ of habeas corpus shall “award the writ or issue an 6 order directing the respondent to show cause why the writ should not be granted, unless it appears 7 from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 8 The petition alleges one claim, i.e., that Petitioner received ineffective assistance of appellate 9 counsel in that appellate counsel failed to challenge trial counsel’s ineffectiveness in failing to object to sentencing errors. Liberally construed, the claim is cognizable in a federal habeas action. 11 For the Northern District of California United States District Court 10 IV. CONCLUSION 12 For the foregoing reasons, 13 1. The petition warrants a response. 14 2. The Clerk shall serve by mail a copy of this order, the petition and all attachments 15 thereto upon Respondent and Respondent’s attorney, the Attorney General of the State of California. 16 The Clerk shall also serve a copy of this order on Petitioner. 17 3. Respondent must file and serve upon Petitioner, on or before December 20, 2013, an 18 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 19 cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a 20 copy of all portions of the court proceedings that have been previously transcribed and that are 21 relevant to a determination of the issues presented by the petition. 22 23 24 4. If Petitioner wishes to respond to the answer, he must do so by filing a traverse with the Court and serving it on Respondent on or before January 31, 2014. 5. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the 25 Court informed of any change of address and must comply with the Court’s orders in a timely 26 fashion. 27 28 2 1 2 3 6. Petitioner is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case. 7. Petitioner’s in forma pauperis application is GRANTED. (Docket # 8.) 4 5 IT IS SO ORDERED. 6 7 Dated: October 25, 2013 8 _________________________ EDWARD M. CHEN United States District Judge 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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