Holt v. Frink

Filing 3

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 5/22/2015. Signed by Judge Edward M. Chen on 3/23/15.(emclc1, COURT STAFF) (Filed on 3/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY L. HOLT, Jr.,

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Petitioner,

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v.

ORDER FOR RESPONDENT TO SHOW
CAUSE

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For the Northern District of California

United States District Court

No. C-15-01302 EMC

MARTIN L. FRINK, Warden

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Respondent.
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Petitioner, a California prisoner, filed a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. See Docket No. 1. Venue is proper here because Petitioner was convicted in

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Alameda County, which is in this district. See 28 U.S.C. § 2241(d). His petition is now before the

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court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254

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Cases in the United States District Courts.

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BACKGROUND

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According to the petition, Petitioner pleaded no contest to the following California state

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crimes: (1) assault with a semiautomatic firearm; (2) use of a firearm; (3) possession of a firearm

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with a prior juvenile conviction; and (4) attempt to evade a peace officer while driving recklessly.

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Docket No. 1. Petitioner did not file a direct appeal because he claims he “was not aware that a no

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contest plea could be challenged on collateral grounds.” Id. Petitioner subsequently sought habeas

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corpus relief at all three levels of the California state courts. Id.

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DISCUSSION
This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

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

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court

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considering an application for a writ of habeas corpus shall “award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears from

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the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

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For the Northern District of California

United States District Court

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Cir. 1990).
The petition alleges the following claims: (1) trial court unconstitutionally applied a

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sentencing enhancement without sufficient factual support; (2) trial counsel provided ineffective

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assistance by failing to object to petitioner’s “unconstitutional” sentence; (3) trial court

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unconstitutionally refused to allow petitioner to discharge his trial counsel; (4) trial court failed to

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give Boykin v. Alabama, 395 U.S. 238 (1969) advisements before accepting stipulation; and (5) trial

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counsel provided ineffective assistance by stipulating to factual allegations at preliminary hearing

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without Petitioner’s consent. These claims are sufficient to require a response.

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CONCLUSION
1.

The Clerk shall serve by mail a copy of this order, the petition and all attachments

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thereto upon Respondent and Respondent’s attorney, the Attorney General of the

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State of 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 sixty (60) days of

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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

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not be issued. Respondent must file with the answer a copy of all portions of the

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court proceedings that have been previously transcribed and that are relevant to a

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determination of the issues presented by the petition.

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If Petitioner wishes to respond to the answer, he must do so by filing a traverse with

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the court and serving it on Respondent within thirty (30) days of his receipt of the

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answer.

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4.

Respondent may file a motion to dismiss on procedural grounds in lieu of an answer,

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as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If Respondent files such a motion, it is due sixty (60) days from

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the date this Order is issued. If a motion is filed, Petitioner shall file with the court

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and serve on Respondent an opposition or statement of non-opposition within thirty

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(30) days of receipt of the motion, and Respondent may file with the court and serve

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For the Northern District of California

United States District Court

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on Petitioner a reply within fourteen (14) days of the filing of any opposition.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

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court informed of any change of address and must comply with the court's orders in a

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timely fashion.

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IT IS SO ORDERED.

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Dated: March 23, 2015

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_________________________
EDWARD M. CHEN
United States District Judge

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