Marcus

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge Charles R. Breyer on 11/3/2014. (crblc1, COURT STAFF) (Filed on 11/3/2014)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8
9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IN RE MICHAEL MARCUS,

No. C14-03769 CRB

Petitioner

ORDER TO SHOW CAUSE
/

Petitioner Michael Marcus, who has served a state court sentence and remains on
probation for sexual battery and for annoying of molesting a child under the age of 18 per
California Penal Code Sections 242/243.4(E) and 647.6(A), has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. See generally Petition (dkt. 1). Petitioner argues that
(1) he received ineffective assistance of counsel; (2) his misdemeanor counts violated the
statute of limitations; (3) his counsel fraudulently induced him to waive his right to a jury
trial; (4) his probation condition violates his constitutional rights; (5) the requirement that he
register as a sex offender violates the Equal Protection Clause; and (6) the illegal touching by
the complaining witnesses was ambiguous. Id. at 19-58.
A court may entertain a petition for a writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A petitioner who is on probation at the time of filing is considered in custody. See Chaker v.
Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); cf. United States v. Span, 75 F.3d 1383, 1386
n.5 (9th Cir. 1996) (probation establishes custody for purposes of 28 U.S.C. § 2255) . A court

1

shall “award the writ or issue an order directing the respondent to show cause why the writ

2

should not be granted, unless it appears from the application that the applicant or person

3

detained is not entitled thereto.” 28 U.S.C. § 2243.

4
5

The Court has reviewed the petition and finds good cause to proceed. Accordingly,
1.

The Clerk of the Court shall serve by certified mail a copy of this Order

6

and the petition and all attachments thereto upon the Attorney General of the State of

7

California. The Clerk shall also serve a copy of this Order on the Petitioner’s counsel.

8
9

2.

Respondents shall file with this Court and serve upon the Petitioner,

within sixty (60) days of the issuance of this Order, an answer conforming in all respects to

United States District Court
For the Northern District of California

10

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

11

corpus should not be issued. Respondents shall file with the answer a copy of all portions of

12

the state trial and appellate record that have been transcribed previously and that are relevant

13

to a determination of the issues presented by the petition.

14

3.

If the Petitioner wishes to respond to the answer, he shall do so by filing

15

a traverse with the Court and serving it upon the Respondents within thirty (30) days of his

16

receipt of the answer.

17
18

IT IS SO ORDERED.
Dated: November 3, 2014
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2