Gallego v. Johnson

Filing 8

ORDER TO SHOW CAUSE. Habeas Answer due by 8/29/2016. Signed by Judge Edward M. Chen on 6/29/2016. (emcsec, COURT STAFF) (Filed on 6/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERICKA SHIRLEY GALLEGO,

Case No. 16-cv-02720-EMC

Plaintiff,

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ORDER TO SHOW CAUSE

v.

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Docket No. 1
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DEBORAH K. JOHNSON,
Defendant.

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For the Northern District of California

United States District Court

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In 2013, Petitioner Ericka Shirley Gallego was found guilty of kidnapping a child under

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fourteen years old and residential burglary, and sentenced to eight years in state prison. Docket

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No. 1-1 (Memorandum of Points & Authorities to Petition for Writ of Habeas Corpus) (Mem.) at

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2. Gallego is now incarcerated at Central California Women’s Facility in Chowchilla, California.

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Id. at 1. Gallego’s petition for a writ of habeas corpus was denied by the Contra Costa Superior

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Court on January 8, 2016, by the California Court of Appeal on February 10, 2016, and by the

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California Supreme Court on May 18, 2016. See Mem., Exhs. D-F. Gallego has now filed a

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petition for habeas relief, claiming ineffective assistance of counsel and denial of due process. Id.

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at 1.

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The 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). It

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

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

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entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations

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in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Here, it does not appear from the face of the petition that it is patently without merit, as

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one or more claims are exhausted. Good cause appearing, the Court hereby issues the following

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orders:

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1.

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

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attachments thereto upon Respondents. The Clerk shall also serve a copy of this order (via

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electronic filing) on Petitioner’s counsel.

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2.

Respondents shall file with the Court and serve on Petitioner, within 60 days of the

2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall

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file with the answer all portions of the state record that have been transcribed previously and are

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For the Northern District of California

date of this Order, an answer conforming in all respects to Rule 5 of the Rules Governing Section

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United States District Court

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relevant to a determination of the issues presented by the petition.

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3.

If Petitioner wishes to respond to the Answer, she shall do so by filing a Traverse

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with the Court and serving it on Respondent within thirty days of his receipt of the Answer. If she

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does not do so, the Petition will be deemed submitted and ready for decision on the date the

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Traverse is due.

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IT IS SO ORDERED.

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Dated: June 29, 2016
______________________________________
EDWARD M. CHEN
United States District Judge

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