Fearence v. Grounds

Filing 7

ORDER TO SHOW CAUSE, Granting 5 MOTION for Leave to Proceed in forma pauperis filed by Jaques Fearence, 4 MOTION for leave to amend filed by Jaques Fearence. Habeas Answer or Dispositive Motion due by 8/1/2014. Signed by Judge Charles R. Breyer on 6/2/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/2/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JACQUES FEARENCE, V51385,
Petitioner,

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vs.
R. GROUNDS, Warden,
Respondent.

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No. C 14-1270 CRB (PR)
ORDER TO SHOW CAUSE
(Dkt. #4 & 5)

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Petitioner, a state prisoner incarcerated at Salinas Valley State Prison

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(SVSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254 challenging a prison disciplinary panel’s finding that he was in possession

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of a controlled substance in prison and subsequent assessment of 130 days of

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time credit. Petitioner specifically claims that the panel’s denial of his request to

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present a witness at the hearing deprived him of an opportunity to present an

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adequate defense in violation of his procedural due process rights under Wolff v.

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McDonell, 418 U.S. 539 (1974).

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Petitioner first presented his claim in Fearence v. Grounds, No. C 13-1372

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CRB (PR) (N.D. Cal. filed Mar. 27, 2013). The claim involved a January 20,

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2012 rules violation that resulted in a guilty finding and assessment of 130 days

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of time credit, but which was ordered reissued and reheard, and the subsequent

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August 23, 2012 rules violation that again resulted in a guilty finding and

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assessment of 130 days of time credit. The court dismissed the January 20, 2012

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rules violation claim as moot and the August 23, 2012 rules violation claim for

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failure to exhaust state court remedies. But the court made clear that the

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dismissal of the August 23, 2012 rules violation claim was without prejudice to

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petitioner filing a new federal habeas petition after exhausting state court

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remedies regarding the August 23, 2012 rules violation claim.

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Pursuant to the court’s instructions, petitioner brings his August 23, 2012

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rules violation claim in a new federal habeas petition after the Supreme Court of

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California summarily denied the claim on February 26, 2014. See Dkt. #4 at 48.1

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Liberally construed, petitioner’s claim – that the panel’s denial of his request to

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present a witness at the hearing on the August 13, 2012 rules violation deprived

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him of an opportunity to present an adequate defense under Wolff v. McDonnell,

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418 U.S. 539 (1974) – appears cognizable under § 2254 and merits an answer

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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

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liberally).

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner’s request to proceed in forma pauperis (dkt. #5) is

GRANTED.

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2.

The clerk shall serve by certified mail a copy of this order and the

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First Amended Petition and all attachments thereto on respondent and

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respondent’s attorney, the Attorney General of the State of California. The clerk

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also shall serve a copy of this order on petitioner.

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Petitioner’s motion for leave to file an amended petition (dkt. #4) is
GRANTED. The clerk is instructed to file the proposed amended petition (dkt. #4 at 249) as the operative First Amended Petition in this case.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. 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

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transcribed previously and that are relevant to a determination of the issues

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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 court and serving it on respondent within 30 days of his receipt
of the answer.
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Respondent may file a motion to dismiss on procedural grounds in

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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,

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petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 28 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 14 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED:

June 2, 2014
CHARLES R. BREYER
United States District Judge

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