Mullins v. Foulk
Filing
8
ORDER TO SHOW CAUSE; GRANTING 2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge Jeffrey S. White on 4/18/14. (jjoS, COURT STAFF) (Filed on 4/18/2014)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10
MONTY ALLEN MULLINS,
11
12
13
14
15
Petitioner,
vs.
WARDEN FOULKE,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
No. C 14-0858 JSW (PR)
ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS
(Docket No. 2)
16
17
18
19
20
21
22
23
24
25
26
27
28
INTRODUCTION
Petitioner, a prisoner of the State of California proceeding pro se, has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of
his state court conviction. Respondent is ordered to show cause why the petition should
not be granted, and Petitioner is granted leave to proceed in forma pauperis.
BACKGROUND
In 2012 in Sonoma County Superior Court, Petitioner entered a plea of nolo
contendere to a multitude of charges and sentence enhancements He was sentenced to a
term of 31 years in state prison. He states that his direct appeals were “abandoned,” and
then in 2013 he filed a succession of habeas petitions in each of the three levels of the
California courts. The California Supreme Court denied the last of these in February
2014. Petitioner then filed the instant federal petition.
1
2
DISCUSSION
I
3
Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a
4
person in custody pursuant to the judgment of a State court only on the ground that he is
5
in custody in violation of the Constitution or laws or treaties of the United States.” 28
6
U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to
7
show cause why the writ should not be granted, unless it appears from the application that
8
the applicant or person detained is not entitled thereto.” Id. § 2243.
9
II.
10
Legal Claims
As grounds for federal habeas relief, Petitioner claims: (1) that he received
11
ineffective assistance of counsel; (2) that his plea of nolo contendere was not knowing
12
and voluntary; (3) that the prosecutor and police committed misconduct, including failing
13
to disclose potentially exculpatory evidence; and (4) his sentence was not authorized by
14
state law and is disproportionate to his crime. Liberally construed, these claims are
15
sufficient to warrant a response from Respondent.
16
CONCLUSION
17
For the foregoing reasons and for good cause shown,
18
1. The Clerk shall serve a copy of this order and the petition, and all attachments
19
thereto, on Respondent and Respondent's attorney, the Attorney General of the State of
20
California. The Clerk also shall serve a copy of this order on Petitioner.
21
2. Respondent shall file with the Court and serve on Petitioner, within ninety-one
22
(91) days of the issuance of this order, an answer conforming in all respects to Rule 5 of
23
the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus
24
should not be granted. Respondent shall file with the answer and serve on Petitioner a
25
copy of all portions of the state trial record that have been transcribed previously and that
26
are relevant to a determination of the issues presented by the petition. If Petitioner wishes
27
to respond to the answer, he shall do so by filing a traverse with the Court and serving it
28
2
1
2
on Respondent within twenty-eight (28) days of the date the answer is filed.
3. Respondent may, within ninety-one (91) days, file a motion to dismiss on
3
procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to
4
Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion,
5
Petitioner shall file with the Court and serve on Respondent an opposition or statement of
6
non-opposition within twenty-eight (28) days of the date the motion is filed, and
7
Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14)
8
days of the date any opposition is filed.
9
3. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep
10
the Court informed of any change of address by filing a separate paper captioned “Notice
11
of Change of Address.” He must comply with the Court’s orders in a timely fashion.
12
Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
13
to Federal Rule of Civil Procedure 41(b).
14
4. Petitioner’s application to proceed in forma pauperis is GRANTED (dkt. 2).
15
IT IS SO ORDERED.
16
17
18
DATED: April 18, 2014
JEFFREY S. WHITE
United States District Judge
19
20
21
22
23
24
25
26
27
28
3
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
6
MONTY ALLEN MULLINS,
Plaintiff,
7
8
9
10
Case Number: CV14-00858 JD
CERTIFICATE OF SERVICE
v.
WARDEN FOULKE et al,
Defendant.
/
11
12
13
14
15
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 April 18, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
16
17
18
19
20
21
22
23
24
25
26
27
28
Monty Allen Mullins AL 1169
High Desert State Prison
P.O. Box 3030
Susanville, CA 96127-3030
Dated: April 18, 2014
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?