Kumiyama v. Lewis

Filing 7

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 3/28/2014. Signed by Judge Jon S. Tigar on December 25, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 12/30/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDWARD N. KUMIYAMA,

Case No. 13-cv-03265-JST (PR)

Petitioner,
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v.

ORDER TO SHOW CAUSE

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G. D. LEWIS, Warden,
Respondent.

United States District Court
Northern District of California

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Petitioner, a state prisoner incarcerated at Pelican Bay State Prison ("PBSP") and

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proceeding pro se, has filed an amended petition for a writ of habeas corpus under 28 U.S.C.

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§ 2254. He has paid the filing fee.
DISCUSSION

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A.

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

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custody pursuant to the judgment of a state court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975).
A district court 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 that the applicant

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or person detained is not entitled thereto." 28 U.S.C. § 2243.

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B.

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Petitioner's Claims
In his petition, petitioner alleges that he was validated as a prison gang associate of the

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EME prison gang while housed at California State Prison – Sacramento in 2006. In 2011, he was

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re-validated as an associate of the EME prison gang and was given an indeterminate sentence in

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the Secured Housing Unit ("SHU") at PBSP. California Penal Code § 2933.6, as amended
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effective January 25, 2010, precludes good time credits while in the SHU. Petitioner contends that
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the application of the amended version of § 2933.6 to him resulted in his minimum release date
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being extended from March 3, 2017 to May 14, 2018. Petitioner claims he did not receive due
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process at his re-validation hearing. Liberally construed, petitioner's claim are cognizable under
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§ 2254 and merit an answer from respondent.
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CONCLUSION
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1. The Clerk shall mail a copy of this order and the petition, with all attachments, to the
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respondent and the respondent's attorney, the Attorney General of the State of California. The
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Clerk shall also serve a copy of this order on petitioner.
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United States District Court
Northern District of California

2. Respondent shall file with the Court and serve on petitioner, within ninety-one (91)
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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted
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based on the claims found cognizable herein. Respondent shall file with the answer and serve on
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petitioner a copy of all portions of the record of the gang validation proceedings that are relevant
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to a determination of the issues 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
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Court and serving it on respondent within twenty-eight (28) days of the date the answer is filed.
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3. Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural
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grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the
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Court and serve on respondent an opposition or statement of non-opposition within twenty-eight
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(28) days of the date the motion is filed, and respondent shall file with the Court and serve on
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petitioner a reply within fourteen (14) days of the date any opposition is filed.
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4. Petitioner is reminded that all communications with the Court must be served on
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respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep
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the Court informed of any change of address and must comply with the Court's orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
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1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
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Dated: December 25, 2013
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______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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