Harrison v. Swarthout

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Jon S. Tigar on July 9, 2014. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 7/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCHE L. HARRISON,

Case No. 14-cv-01121-JST (PR)

Petitioner,
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v.

ORDER TO SHOW CAUSE

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GARY SWARTHOUT, Warden,
Respondent.

United States District Court
Northern District of California

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INTRODUCTION
Marche L. Harrison, a prisoner at California State Prison – Solano, filed a pro se amended

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His amended petition is now

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before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing

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Section 2254 Cases. He has paid the $5.00 filing fee.

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BACKGROUND
In 2011, an Alameda County Superior Court jury found petitioner guilty of residential

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burglary, residential robbery, forcible rape while acting in concert, forcible oral copulation while

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acting in concert, and possession of a firearm by someone previously convicted of a felony. The

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trial court found petitioner had one prior conviction for selling drugs, and two prior robbery

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convictions. Petitioner was sentenced to 107 years to life in state prison. The California Court of

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Appeal affirmed, and the California Supreme Court denied review. Petitioner did not seek habeas

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relief in state court. The instant action was filed on March 10, 2014.

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DISCUSSION

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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). A

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district court considering an application for a writ of habeas corpus shall "award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto." 28

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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Petitioner seeks federal habeas relief on the following claims:

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1.

The prosecution withheld a potentially exculpatory document showing that the

Oakland Police Department had closed the case against petitioner more than two years prior to his

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United States District Court
Northern District of California

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arrest.

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2.

The prosecution failed to correct the false testimony of Oakland Police Officer

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Bergquist stating that the Oakland Police Department had maintained an open file against

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petitioner.

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3.

The trial court erred in replacing a deliberating juror with an alternate juror.

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Liberally construed, petitioner's claims appear cognizable under 28 U.S.C. § 2254 and

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merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001)

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(federal courts must construe pro se petitions for writs of habeas corpus liberally).

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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 petitioner.

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2. Respondent shall file with the Court and serve on petitioner, within ninety-one (91)

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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 granted

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

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petitioner a copy of all portions of the state trial record that have been transcribed previously and

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that are relevant to a determination of the issues presented by the petition.
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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 (28) days of the date the answer is filed.

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3. Respondent may file, within ninety-one (91) 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 Rules

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

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Court and serve on respondent an opposition or statement of non-opposition within twenty-eight

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(28) days of the date the motion is filed, and respondent shall file with the Court and serve on

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petitioner a reply within fourteen (14) days of the date any opposition is filed.
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 keep

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United States District Court
Northern District of California

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the Court informed of any change of address and must comply with the Court's orders in a timely

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

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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5. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: July 9, 2014
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JON S. TIGAR
United States District Judge

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