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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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RICKEY ALEXANDER,

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Petitioner,

ORDER TO SHOW CAUSE

v.

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No. C 13-4652 WHA (PR)

K. CHAPPEL,

(Docket No. 4)
Respondent.

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INTRODUCTION

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the

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California Board of Parole Hearings (“Board”). He has applied for leave to proceed in forma

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pauperis.
ANALYSIS

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A.

STANDARD OF REVIEW

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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); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

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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

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For the Northern District of California

United States District Court

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purposes of federal habeas review, the federal constitutional right to due process entitles a

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California only to “minimal” procedural protections in connection with a parole suitability

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determination. Swarthout v Cooke, 131 S.Ct. 859, 863 (2011). The procedural protections are

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limited to an opportunity to be heard and a statement of the reasons why parole was denied. Id.

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at 862. Petitioner does not dispute that he received an opportunity to be heard and a statement

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of the reasons parole was denied. The constitution does not require more. Ibid. The court in

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Swarthout explained that no Supreme Court case “supports converting California’s ‘some

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evidence’ rule into a substantive federal requirement.” Ibid. It is simply irrelevant in federal

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habeas review "whether California's 'some evidence' rule of judicial review (a procedure beyond

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what the Constitution demands) was correctly applied." Id. at 863. As the Supreme Court has

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determined that due process does not require that there be any amount of evidence to support

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the parole denial, petitioner’s due process claims fail.

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Petitioner also claims that the Board violated his rights under the Ex Post Facto Clause

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by applying Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” to him.

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This issue is presently before Ninth Circuit in a pending case. Burnight v. Swarthout, Case No.

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11-16062; see also Gilman v. Schwarzenegger, 638 F.3d 1101, 1105 (9th Cir. 2011).

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Accordingly, it cannot be said that this claim is without merit, and an order to show cause will

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issue on this claim.
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CONCLUSION

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1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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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

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

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granted based on the claims found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the petition.

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For the Northern District of California

United States District Court

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

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court and serving it on respondent within twenty-eight days of the date the answer is filed.

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3. Respondent may file, within ninety-one days, a motion to dismiss on procedural

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grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file

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with the court and serve on respondent an opposition or statement of non-opposition within

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twenty-eight days of the date the motion is filed, and respondent shall file with the court and

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serve on petitioner a reply within fourteen days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

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keep the court informed of any change of address and must comply with the court's orders in a

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

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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5. The application to proceed in forma pauperis (docket number 4) is GRANTED.

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IT IS SO ORDERED.

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Dated: October

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, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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