Henry v. Spearman

Filing 8

ORDER FOR RESPONDENT TO SHOW CAUSE. Signed by Judge James Donato on 11/16/16. (lrcS, COURT STAFF) (Filed on 11/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHEDRICK L. HENRY,
Petitioner,

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United States District Court
Northern District of California

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Case No.16-cv-04504-JD

ORDER FOR RESPONDENT TO
SHOW CAUSE

v.
M. E. SPEARMAN,
Respondent.

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Shedrick Henry, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He has paid the filing fee. Petitioner was convicted while in prison

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in Monterey County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d).
BACKGROUND

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Henry pled guilty to possession of a controlled substance while in prison and was

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sentenced to 25 years to life pursuant to California’s Three Strikes law. He states that his appeals

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and state habeas petitions were denied.
DISCUSSION

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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); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of
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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court
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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS

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As grounds for federal habeas relief, Henry asserts that: (1) his sentence violates the Eighth
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Amendment; (2) he received ineffective assistance of counsel with respect to the plea agreement
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which resulted in a plea that was not knowing and intelligent; and (3) there was an Equal
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Protection violation. These claims are sufficient to require a response.
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United States District Court
Northern District of California

CONCLUSION
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1.
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The clerk shall serve by regular mail a copy of this order and the petition and all

attachments thereto on respondent and respondent’s attorney, the Attorney General of the State of

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California. The clerk also shall serve a copy of this order on petitioner.
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2.

Respondent shall file with the Court and serve on petitioner, within fifty-six (56)

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days of 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 not be granted.
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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state
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trial record that have been transcribed previously and that are relevant to a determination of the
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issues presented by the petition.
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
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Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer.
3.
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 Section
2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order
is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an
opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion,
and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days
of receipt of any opposition.
4.

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. Petitioner must keep
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the Court informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: November 16, 2016

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHEDRICK L. HENRY,

Case No. 16-cv-04504-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. E. SPEARMAN,
Defendant.

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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.

United States District Court
Northern District of California

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That on November 16, 2016, 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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Shedrick L. Henry
High Desert State Prison
K-16736
P.O. Box 3030
Susanville, CA 96127

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Dated: November 16, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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