Adams v. Davis
Filing
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ORDER Reopening Case; Order to Show Cause by Magistrate Judge Elizabeth D. Laporte. (Attachments: # 1 certificate of service)(shyS, COURT STAFF) (Filed on 1/6/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KASEEM ADAMS,
No. C 15-4358 EDL (PR)
Petitioner,
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RON DAVIS, Warden,
Respondent.
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For the Northern District of California
United States District Court
ORDER REOPENING CASE;
ORDER TO SHOW CAUSE
v.
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On September 23, 2015, petitioner, a state prisoner, filed a pro se petition for a writ
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of habeas corpus pursuant to 28 U.S.C. § 2254.1 On November 4, 2015, the Court
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dismissed the petition for failure to pay the filing fee. (Docket No. 3.) That same day,
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petitioner paid the filing fee. (Docket No. 5.) Accordingly, the Court directs the Clerk of the
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Court to reopen this case. For the reasons stated below, respondent is ordered to show
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cause why the petition should not be granted.
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DISCUSSION
A.
Standard of Review
This court may entertain a petition for writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a state court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
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Rose v. Hodges, 423 U.S. 19, 21 (1975).
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A district court shall “award the writ or issue an order directing the respondent to
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show cause why the writ should not be granted, unless it appears from the application that
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the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
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Petitioner consented
(Docket No. 1 at 7.)
to
magistrate
judge
jurisdiction.
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B.
Background
According to the petition, petitioner was convicted in 1999 pursuant to a plea of nolo
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contendere to voluntary manslaughter. The trial court sentenced petition to the “upper
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term” of 11 years. Petitioner filed unsuccessful state habeas petitions in each level of the
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California courts. The underlying federal petition was filed on September 23, 2015.
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C.
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Legal Claims
As grounds for federal habeas relief, petitioner alleges that his sentence violates his
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Sixth Amendment right to a trial by jury, and specifically, Cunningham v. California, 549
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U.S. 270, 273 (2007). Liberally construed, the Court orders respondent to show cause why
the petition should not be granted.
CONCLUSION
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For the Northern District of California
United States District Court
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1.
The Clerk shall re-open this case.
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2.
The Clerk shall serve by mail a copy of this order, the petition and all
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attachments thereto, and a magistrate judge consent form upon the respondent and the
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respondent’s attorney, the Attorney General of the State of California. The Clerk shall also
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serve a copy of this order on the petitioner.
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3.
Respondent shall file with the Court and serve on petitioner, within sixty days
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of the date this order is filed, 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 not be
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granted. Respondent shall file with the answer and serve on petitioner a copy of all
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portions of the underlying state criminal record that have been transcribed previously and
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that are relevant to a determination of the issues presented by the petition. At that time,
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respondent shall also file his magistrate judge consent form.
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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 thirty days of the date the answer is filed.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an
answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing
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Section 2254 Cases within sixty days of the date this order is filed. If respondent files such
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a motion, petitioner shall file with the court and serve on respondent an opposition or
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statement of non-opposition within twenty-eight days of the date the motion is filed, and
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respondent shall file with the Court and serve on petitioner a reply within fourteen days of
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the date any opposition is filed.
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5.
It is petitioner’s responsibility to prosecute this case. Petitioner is reminded
of the document to respondent’s counsel. Petitioner must keep the Court and all parties
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informed of any change of address by filing a separate paper captioned “Notice of Change
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of Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so
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For the Northern District of California
that all communications with the court must be served on respondent by mailing a true copy
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United States District Court
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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
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Civil Procedure 41(b).
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IT IS SO ORDERED.
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Dated: January 6 , 2016.
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ELIZABETH D. LAPORTE
United States Magistrate Judge
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P:\PRO-SE\EDL\HC.15\Adams358reopen.wpd
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