Wade v. Foulk

Filing 27

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 9/8/2015. Signed by Judge Thelton E. Henderson on 07/06/2015. (Attachments: # 1 Certificate/Proof of Service)(tmiS, COURT STAFF) (Filed on 7/7/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CLENARD CEBRON WADE, Case No. 13-cv-4636-TEH Petitioner, 8 v. ORDER TO SHOW CAUSE 9 10 FRED FOULK, Respondent. United States District Court Northern District of California 11 12 13 Petitioner Clenard Cebron Wade, a state prisoner, proceeds 14 with a pro se petition for a writ of habeas corpus under 28 15 U.S.C. § 2254. 16 sufficient to require a response and ordered Respondent to show 17 cause. 18 petition contained both exhausted and unexhausted claims and some 19 of the claims failed to raise a federal constitutional issue. The Court previously found that nine claims were Respondent filed a motion to dismiss arguing that the 20 As noted in the prior Court order several claims were 21 dismissed and the Court found that three claims should continue: 22 one, two and nine. 23 unexhausted but Petitioner could file a motion to stay to exhaust 24 it or strike the claim. 25 indicating his desire to strike claim seven and continue with the 26 other three claims. 27 28 The Court also found that claim seven was Petitioner had filed a response Docket No. 26. Therefore, the case proceeds on the following three claims: (1) the trial court denied Petitioner his right to represent 1 himself; (2) the trial court gave erroneous jury instructions 2 with respect to battery with serious bodily injury that violated 3 due process; and (3)1 juror misconduct and bias. 4 For the foregoing reasons, the Court orders as follows: 5 1. Respondent shall file with the Court and serve on 6 Petitioner, within sixty-three (63) days of the issuance of this 7 Order, an Answer conforming in all respects to Rule 5 of the 8 Rules Governing Section 2254 Cases, showing cause why a writ of 9 habeas corpus should not be granted. Respondent shall file with the Answer and serve on Petitioner a copy of all portions of the 11 United States District Court Northern District of California 10 state trial record that have been transcribed previously and that 12 are relevant to a determination of the issues presented by the 13 Petition. 14 If Petitioner wishes to respond to the Answer, he shall do 15 so by filing a Traverse with the Court and serving it on 16 Respondent within twenty-eight (28) days of his receipt of the 17 Answer. 18 2. In lieu of an Answer, Respondent may file a Motion to 19 Dismiss on procedural grounds, as set forth in the Advisory 20 Committee Notes to Rule 4 of the Rules Governing Section 2254 21 Cases. 22 with the Court and serve on Respondent an Opposition or Statement 23 of Non-Opposition within thirty-five (35) days of receipt of the 24 motion, and Respondent shall file with the Court and serve on 25 Petitioner a Reply within fourteen (14) days of receipt of any 26 Opposition. If Respondent files such a motion, Petitioner shall file 27 28 1 Formerly claim nine. 2 1 3. Petitioner is reminded that all communications with the 2 Court must be served on Respondent by mailing a true copy of the 3 document to Respondent’s counsel. 4 Court and all parties informed of any change of address by filing 5 a separate document entitled “Notice of Change of Address.” 6 7 IT IS SO ORDERED. Dated: 07/06/2015 8 ________________________ THELTON E. HENDERSON United States District Judge 9 10 G:\PRO-SE\TEH\HC.13\Wade4636.osc2.docx 11 United States District Court Northern District of California Petitioner also must keep the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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