Morgan v. Chappell

Filing 2

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 6/2/2014.. Signed by Judge William Alsup on 4/1/14. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 4/2/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TYRONE MORGAN,

ORDER TO SHOW CAUSE

v.

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No. C 14-1203 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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K. CHAPPELL, Warden,
Respondent.

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INTRODUCTION

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Petitioner, a California prisoner incarcerated at San Quentin State Prison, filed this pro

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se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging disciplinary

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findings that resulted in his loss of “good time” credits. He has paid the filing fee. For the

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reasons discussed below, respondent is ordered to show cause why the petition should not be

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granted.
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 alleges that prison officials found him guilty of possession of a cell phone in

prison and assessed a loss of 90 days of “good-time” credits. He claims that he was not

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For the Northern District of California

United States District Court

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provided notice that this violated prison rules, as required by due process. When liberally

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construed, this claim is sufficient to warrant an answer from respondent.

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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

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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 claim 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 prison disciplinary proceedings that are

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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 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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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: April

1 , 2014.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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