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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARD N. KUMIYAMA, Case No. 13-cv-03265-JST (PR) Petitioner, 8 v. ORDER TO SHOW CAUSE 9 10 G. D. LEWIS, Warden, Respondent. United States District Court Northern District of California 11 12 Petitioner, a state prisoner incarcerated at Pelican Bay State Prison ("PBSP") and 13 14 proceeding pro se, has filed an amended petition for a writ of habeas corpus under 28 U.S.C. 15 § 2254. He has paid the filing fee. DISCUSSION 16 17 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in 18 19 custody pursuant to the judgment of a state court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. 21 Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show 22 23 cause why the writ should not be granted, unless it appears from the application that the applicant 24 or person detained is not entitled thereto." 28 U.S.C. § 2243. 25 B. 26 Petitioner's Claims In his petition, petitioner alleges that he was validated as a prison gang associate of the 27 EME prison gang while housed at California State Prison – Sacramento in 2006. In 2011, he was 28 re-validated as an associate of the EME prison gang and was given an indeterminate sentence in 1 the Secured Housing Unit ("SHU") at PBSP. California Penal Code § 2933.6, as amended 2 effective January 25, 2010, precludes good time credits while in the SHU. Petitioner contends that 3 the application of the amended version of § 2933.6 to him resulted in his minimum release date 4 being extended from March 3, 2017 to May 14, 2018. Petitioner claims he did not receive due 5 process at his re-validation hearing. Liberally construed, petitioner's claim are cognizable under 6 § 2254 and merit an answer from respondent. 7 CONCLUSION 8 1. The Clerk shall mail a copy of this order and the petition, with all attachments, to the 9 respondent and the respondent's attorney, the Attorney General of the State of California. The 10 Clerk shall also serve a copy of this order on petitioner. 11 United States District Court Northern District of California 2. Respondent shall file with the Court and serve on petitioner, within ninety-one (91) 12 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 13 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 14 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 15 petitioner a copy of all portions of the record of the gang validation proceedings that are relevant 16 to a determination of the issues presented by the petition. 17 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 18 Court and serving it on respondent within twenty-eight (28) days of the date the answer is filed. 19 3. Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural 20 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 21 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 22 Court and serve on respondent an opposition or statement of non-opposition within twenty-eight 23 (28) days of the date the motion is filed, and respondent shall file with the Court and serve on 24 petitioner a reply within fourteen (14) days of the date any opposition is filed. 25 4. Petitioner is reminded that all communications with the Court must be served on 26 respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep 27 28 2 1 the Court informed of any change of address and must comply with the Court's orders in a timely 2 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 4 1997) (Rule 41(b) applicable in habeas cases). 5 IT IS SO ORDERED. 6 Dated: December 25, 2013 7 8 ______________________________________ JON S. TIGAR United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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