Mejia v. Spearman

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 11/10/2014. Signed by Judge William Alsup on 8/11/14. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 8/11/2014)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 JIMMY G. MEJIA, Petitioner, 12 ORDER TO SHOW CAUSE v. 13 14 No. C 14-3304 WHA (PR) M.E. SPEARMAN, (Docket No. 2) Respondent. 15 / 16 INTRODUCTION 17 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 18 19 corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the 20 California Board of Parole Hearings (“Board”) in 2013. He has applied for leave to proceed in 21 forma pauperis. ANALYSIS 22 23 A. STANDARD OF REVIEW 24 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 27 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 28 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 1 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 2 court must “specify all the grounds for relief which are available to the petitioner ... and shall 3 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 4 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 5 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 6 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 7 688, 689 (1st Cir. 1970)). 8 B. 9 LEGAL CLAIMS Petitioner alleges that he had a parole hearing in 2013 at which the Board found him unsuitable for parole. He claims that the Board’s decision violates his rights to due process and 11 For the Northern District of California United States District Court 10 equal protection because the decision was “predetermined,” i.e. the Board made its decision 12 before the hearing. For purposes of federal habeas review, the federal constitutional right to 13 due process entitles a California only to “minimal” procedural protections in connection with a 14 parole suitability determination. Swarthout v Cooke, 131 S.Ct. 859, 863 (2011). The 15 procedural protections are limited to an opportunity to be heard and a statement of the reasons 16 why parole was denied. Id. at 862. Because Petitioner’s claim, when liberally construed, could 17 amount to an assertion that by making its decision before the hearing, the Board denied him an 18 opportunity to be heard, it cannot be said at this stage that this claim is without merit, and 19 Respondent will be ordered to answer the claim. 20 CONCLUSION 21 1. The clerk shall mail a copy of this order and the petition with all attachments to the 22 respondent and the respondent's attorney, the Attorney General of the State of California. The 23 clerk shall also serve a copy of this order on the petitioner. 24 2. Respondent shall file with the court and serve on petitioner, within ninety-one days 25 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 26 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 27 granted based on the claim found cognizable herein. Respondent shall file with the answer and 28 serve on petitioner a copy of all portions of the state trial record that have been transcribed 2 1 2 previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 3 court and serving it on respondent within twenty-eight days of the date the answer is filed. 4 3. Respondent may file, within ninety-one days, a motion to dismiss on procedural 5 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 6 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 7 with the court and serve on respondent an opposition or statement of non-opposition within 8 twenty-eight days of the date the motion is filed, and respondent shall file with the court and 9 serve on petitioner a reply within fourteen days of the date any opposition is filed. 4. Petitioner is reminded that all communications with the court must be served on 11 For the Northern District of California United States District Court 10 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 12 keep the court informed of any change of address and must comply with the court's orders in a 13 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 14 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 15 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 16 5. The application to proceed in forma pauperis (docket number 2) is GRANTED. 17 IT IS SO ORDERED. 18 Dated: August 11 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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