Whitfield v. Swarthout

Filing 16

ORDER TO SHOW CAUSE. Signed by Judge Richard Seeborg on 3/7/16. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 3/7/2016) Modified on 3/7/2016 (cl, COURT STAFF).

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*E-Filed 3/7/16*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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United States District Court
For the Northern District of California

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ORDER TO SHOW CAUSE

Petitioner,

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v.

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No. C 13-3267 RS (PR)

TERRELL WHITFIELD,

GARY SWARTHOUT, Warden,
Respondent.

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INTRODUCTION

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Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state

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convictions. The petition for such relief is now before the Court for review pursuant to

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28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Respondent shall

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file a response to the petition on or before June 14, 2016, unless an extension is granted.

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The petition may be untimely. Respondent is directed to consider first whether a

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motion to dismiss on grounds of untimeliness is the most appropriate first response to the

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petition. If he so concludes, he may file a motion to dismiss, though he is not required to do

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so.

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BACKGROUND
According to the petition, in 2011, an Alameda County Superior Court jury convicted
petitioner of second degree robbery and found true an allegation that he personally used a

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No. C 13-3267 RS (PR)
ORDER TO SHOW CAUSE

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firearm during the robbery. Based on the verdict and finding, petitioner was sentenced to

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thirteen years in state prison.
DISCUSSION

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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).

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A district court considering an application for a writ of habeas corpus shall “award the writ or

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issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

United States District Court
For the Northern District of California

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner alleges the trial court violated his Sixth

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Amendment rights by refusing to (1) grant a continuance so that he could procure new

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counsel; and (2) appoint substitute counsel when he voiced complaints about his appointed

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counsel. When liberally construed, these claims are cognizable on federal habeas review.

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CONCLUSION
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto,

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on respondent and respondent’s counsel, the Attorney General for the State of California.

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The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner, within ninety (90)

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days of the date this order is filed, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not

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be granted based on petitioner’s cognizable claims. Respondent shall file with the answer

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and serve on petitioner a copy of all portions of the state trial record that previously have

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been transcribed and that are relevant to a determination of the issues presented by the

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petition.

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No. C 13-3267 RS (PR)
ORDER TO SHOW CAUSE

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within ninety (90) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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

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such a motion, petitioner shall file with the Court and serve on respondent an opposition or

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statement of non-opposition within thirty (30) days of the date the motion is filed, and

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respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of

United States District Court
For the Northern District of California

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the date any opposition is filed.
5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.

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8. The Court notes that the filing fee has been paid.

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IT IS SO ORDERED.

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DATED: March 7, 2016
RICHARD SEEBORG
United States District Judge

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No. C 13-3267 RS (PR)
ORDER TO SHOW CAUSE