Barriga v. Gipson

Filing 4

ORDER TO SHOW CAUSE - The Clerk shall serve a copy of this order, the petition and all attachments thereto, on respondent and respondents counsel, the Attorney General for the State of California. The Clerk shall also serve a copy of this order on petitioner. Habeas Answer or Dispositive Motion due by 3/17/2014. Petitioner's application to proceed in forma pauperis (Docket No. 3) is GRANTED. The Clerk shall amend the docket so that petitioner's name reads Hugo Barriga Rosales. Signed by Judge William H. Orrick on 12/17/2013. (jmdS, COURT STAFF) (Filed on 12/17/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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HUGO BARRIGA ROSALES,

Case No. 13-cv-03860-WHO (PR)

Petitioner,
v.

ORDER TO SHOW CAUSE

CONNIE GIPSON, Warden,
Respondent.

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INTRODUCTION
Petitioner Hugo Rosales seeks federal habeas relief from his state convictions. The

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petition for such relief is now before the Court for review pursuant to 28 U.S.C. § 2243

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and Rule 4 of the Rules Governing Section 2254 Cases. Respondent shall file an answer

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or dispositive motion in response to the habeas petition on or before March 16, 2014,

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unless an extension is granted.

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BACKGROUND

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According to the petition, a Santa Clara County Superior Court jury convicted

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Barriga of sexual penetration of, and forcible lewd conduct with, a minor. He received a

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sentence of 27 years-to-life in state prison.

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DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). A district court considering an application for a writ of habeas corpus shall

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“award the writ or issue an order directing the respondent to show cause why the writ

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should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

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only where the allegations in the petition are vague or conclusory, palpably incredible, or

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

United States District Court
Northern District of California

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As grounds for federal habeas relief, Barriga alleges that (1) the trial court admitted

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evidence in violation of due process; and (2) defense counsel rendered ineffective

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

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review.

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CONCLUSION

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

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

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California. 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

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not be granted based on petitioner’s cognizable claims. Respondent shall file with the

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

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

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the petition.

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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

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

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opposition or statement of non-opposition within thirty (30) days of the date the motion is

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filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen

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(15) days of the date any opposition is filed.

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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

United States District Court
Northern District of California

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

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for 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

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be granted provided they are filed on or before the deadline they seek to extend.

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8. Petitioner's application to proceed in forma pauperis (Docket No. 3) is

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GRANTED. The Clerk shall terminate Docket No. 3.
9. The Clerk shall amend the docket so that petitioner's name reads Hugo Barriga
Rosales.
IT IS SO ORDERED.
Dated: December 17, 2013
_________________________
WILLIAM H. ORRICK
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

HUGO BARRIGA ROSALES,

Case Number: CV13-03860 WHO

Plaintiff,

CERTIFICATE OF SERVICE

v.
CONNIE GIPSON et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 17, 2013, I SERVED a true and correct copy of the attached, by placing said
copy in a postage paid envelope addressed to the person hereinafter listed, by depositing said
envelope in the U.S. Mail.

Hugo Barriga Rosales AE-3069
Corcoran State Prison 3C02-227-L
P.O. Box 3471
Corcoran, CA 93212

Dated: December 17, 2013
Richard W. Wieking, Clerk
By: Jean Davis, Deputy Clerk