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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1 2 *E-Filed 3/7/16* 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 United States District Court For the Northern District of California 10 ORDER TO SHOW CAUSE Petitioner, 11 v. 12 13 No. C 13-3267 RS (PR) TERRELL WHITFIELD, GARY SWARTHOUT, Warden, Respondent. 14 / 15 INTRODUCTION 16 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 17 18 convictions. The petition for such relief is now before the Court for review pursuant to 19 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Respondent shall 20 file a response to the petition on or before June 14, 2016, unless an extension is granted. 21 The petition may be untimely. Respondent is directed to consider first whether a 22 motion to dismiss on grounds of untimeliness is the most appropriate first response to the 23 petition. If he so concludes, he may file a motion to dismiss, though he is not required to do 24 so. 25 26 27 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 28 No. C 13-3267 RS (PR) ORDER TO SHOW CAUSE 1 firearm during the robbery. Based on the verdict and finding, petitioner was sentenced to 2 thirteen years in state prison. DISCUSSION 3 4 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 5 custody pursuant to the judgment of a State court only on the ground that he is in custody in 6 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 7 A district court considering an application for a writ of habeas corpus shall “award the writ or 8 issue an order directing the respondent to show cause why the writ should not be granted, 9 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 10 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 11 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 12 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 13 As grounds for federal habeas relief, petitioner alleges the trial court violated his Sixth 14 Amendment rights by refusing to (1) grant a continuance so that he could procure new 15 counsel; and (2) appoint substitute counsel when he voiced complaints about his appointed 16 counsel. When liberally construed, these claims are cognizable on federal habeas review. 17 18 CONCLUSION 1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, 19 on respondent and respondent’s counsel, the Attorney General for the State of California. 20 The Clerk shall also serve a copy of this order on petitioner. 21 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) 22 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 23 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 24 be granted based on petitioner’s cognizable claims. Respondent shall file with the answer 25 and serve on petitioner a copy of all portions of the state trial record that previously have 26 been transcribed and that are relevant to a determination of the issues presented by the 27 petition. 28 2 No. C 13-3267 RS (PR) ORDER TO SHOW CAUSE 1 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 3 answer is filed. 4 4. In lieu of an answer, respondent may file, within ninety (90) days of the date this 5 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 6 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files 7 such a motion, petitioner shall file with the Court and serve on respondent an opposition or 8 statement of non-opposition within thirty (30) days of the date the motion is filed, and 9 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 10 11 12 13 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 14 Court and respondent informed of any change of address and must comply with the Court’s 15 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 16 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 18 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. 19 8. The Court notes that the filing fee has been paid. 20 IT IS SO ORDERED. 21 DATED: March 7, 2016 RICHARD SEEBORG United States District Judge 22 23 24 25 26 27 28 3 No. C 13-3267 RS (PR) ORDER TO SHOW CAUSE

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