Alexander v. Chapell

Filing 5

ORDER TO SHOW CAUSE. Signed by Judge William Alsup on 10/30/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 11/1/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 RICKEY ALEXANDER, 12 Petitioner, ORDER TO SHOW CAUSE v. 13 14 No. C 13-4652 WHA (PR) K. CHAPPEL, (Docket No. 4) Respondent. 15 / 16 INTRODUCTION 17 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 18 19 corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the 20 California Board of Parole Hearings (“Board”). He has applied for leave to proceed in forma 21 pauperis. ANALYSIS 22 23 A. STANDARD OF REVIEW 24 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 27 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 28 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 1 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 2 court must “specify all the grounds for relief which are available to the petitioner ... and shall 3 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 4 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 5 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 6 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 7 688, 689 (1st Cir. 1970)). 8 B. 9 LEGAL CLAIMS Petitioner’s first two claims contend that he was denied due process because the Board’s denial of parole was not supported by sufficient evidence of his current dangerousness. For 11 For the Northern District of California United States District Court 10 purposes of federal habeas review, the federal constitutional right to due process entitles a 12 California only to “minimal” procedural protections in connection with a parole suitability 13 determination. Swarthout v Cooke, 131 S.Ct. 859, 863 (2011). The procedural protections are 14 limited to an opportunity to be heard and a statement of the reasons why parole was denied. Id. 15 at 862. Petitioner does not dispute that he received an opportunity to be heard and a statement 16 of the reasons parole was denied. The constitution does not require more. Ibid. The court in 17 Swarthout explained that no Supreme Court case “supports converting California’s ‘some 18 evidence’ rule into a substantive federal requirement.” Ibid. It is simply irrelevant in federal 19 habeas review "whether California's 'some evidence' rule of judicial review (a procedure beyond 20 what the Constitution demands) was correctly applied." Id. at 863. As the Supreme Court has 21 determined that due process does not require that there be any amount of evidence to support 22 the parole denial, petitioner’s due process claims fail. 23 Petitioner also claims that the Board violated his rights under the Ex Post Facto Clause 24 by applying Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” to him. 25 This issue is presently before Ninth Circuit in a pending case. Burnight v. Swarthout, Case No. 26 11-16062; see also Gilman v. Schwarzenegger, 638 F.3d 1101, 1105 (9th Cir. 2011). 27 Accordingly, it cannot be said that this claim is without merit, and an order to show cause will 28 issue on this claim. 2 1 CONCLUSION 2 1. The clerk shall mail a copy of this order and the petition with all attachments to the 3 respondent and the respondent's attorney, the Attorney General of the State of California. The 4 clerk shall also serve a copy of this order on the petitioner. 5 2. Respondent shall file with the court and serve on petitioner, within ninety-one days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 7 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 8 granted based on the claims found cognizable herein. Respondent shall file with the answer and 9 serve on petitioner a copy of all portions of the state trial record that have been transcribed 10 previously and that are relevant to a determination of the issues presented by the petition. 11 For the Northern District of California United States District Court 6 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 12 court and serving it on respondent within twenty-eight days of the date the answer is filed. 13 3. Respondent may file, within ninety-one days, a motion to dismiss on procedural 14 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 15 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 16 with the court and serve on respondent an opposition or statement of non-opposition within 17 twenty-eight days of the date the motion is filed, and respondent shall file with the court and 18 serve on petitioner a reply within fourteen days of the date any opposition is filed. 19 4. Petitioner is reminded that all communications with the court must be served on 20 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 21 keep the court informed of any change of address and must comply with the court's orders in a 22 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 23 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 24 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 25 5. The application to proceed in forma pauperis (docket number 4) is GRANTED. 26 IT IS SO ORDERED. 27 Dated: October 30 , 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 28 3

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