Harper v. Chappell

Filing 7

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 4/13/2015.. Signed by Judge Joseph C. Spero on 1/13/15. (klhS, COURT STAFF) (Filed on 1/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RUBEN B. HARPER,

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Case No. 14-cv-04151-JCS (PR)

Petitioner,
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v.

ORDER TO SHOW CAUSE

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KEVIN CHAPPELL,

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Respondent.
United States District Court
Northern District of California

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INTRODUCTION

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Petitioner seeks federal habeas relief from a decision resulting from a prison

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disciplinary proceeding conducted by his jailors at San Quentin State Prison.1 The petition

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for such relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4

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of the Rules Governing Section 2254 Cases.
Respondent shall file an answer or dispositive motion in response to the habeas

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petition on or before April 14, 2015, unless an extension is granted.
BACKGROUND

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According to the petition, in 2012, petitioner’s jailors at San Quentin State Prison

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found petitioner guilty of possession of contraband alcohol. As a result, he had to forfeit

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120 days of time credits.

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Petitioner has consented to magistrate judge jurisdiction. (Pet. at 7.) The magistrate
judge, then, has jurisdiction to issue this order, even though respondents have not been
served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530,
532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison
inmate’s action under 42 U.S.C. § 1983 as frivolous without consent of defendants because
defendants had not been served yet and therefore were not parties).

DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). A district court considering an application for a writ of habeas corpus shall

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

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

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

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only where the allegations in the petition are vague or conclusory, palpably incredible, or

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

United States District Court
Northern District of California

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As grounds for federal habeas relief, petitioner alleges that he was denied due

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process (1) at his disciplinary hearing, and (2) during his appeal of the disciplinary

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decision through the prison grievance system. Liberally construed, these claims are

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cognizable on federal habeas review.

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His remaining claims are not. Petitioner’s claim that his jailors failed to follow

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California regulations is DISMISSED because it is a state law claim. Federal habeas relief

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is unavailable for violations of state law, even if state law were erroneously applied or

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interpreted. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011). To the extent that

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petitioner raises a claim of First Amendment denial of access to the courts, it is

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DISMISSED without prejudice. If petitioner wishes to seek relief on such a claim, he may

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do so by filing a civil rights action.

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CONCLUSION

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1. The Clerk shall serve a copy of this order, the petition and all attachments

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thereto, on respondent and respondent’s counsel, the Attorney General for the State of

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California. The 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 (90)

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days of the date this order is filed, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should
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not be granted based on petitioner’s cognizable claims. Respondent shall file with the

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answer and serve on petitioner a copy of all portions of the state trial record that previously

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have been transcribed and that are relevant to a determination of the issues presented by

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the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within ninety (90) days of the date this
order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory
Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent

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United States District Court
Northern District of California

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files such a motion, petitioner shall file with the Court and serve on respondent an

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opposition or statement of non-opposition within thirty (30) days of the date the motion is

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filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen

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(15) days of the date any opposition is filed.

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. 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.

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8. The Court notes that the filing fee has been paid.

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IT IS SO ORDERED.

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Dated: January 13, 2015
_________________________
JOSEPH C. SPERO
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RUBEN B. HARPER,

Case No. 14-cv-04151-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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KEVIN CHAPPELL,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 1/13/2015, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Ruben B. Harper ID: K-08936
San Quentin State Prison
1 Main Street
San Quentin, CA 94974

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Dated: 1/13/2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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