Richardson v. Montgomery

Filing 7

ORDER TO SHOW CAUSE: The Clerk shall serve a copy of this order, the amended petition and all attachments thereto, on respondent and respondent's counsel, the Attorney General for the State of California. The Clerk shall also serve a copy of this order on petitioner. Habeas Answer or Dispositive Motion due by 3/9/2017. 6 MOTION to Amend Petititon GRANTED. 2 MOTION for Leave to Proceed in forma pauperis GRANTED. 4 MOTION for Hearing DENIED as premature. Respondent shall file a response to the 3 discovery motion on or before February 20, 2017. Signed by Judge William H. Orrick on 01/09/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 1/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JERRY ALAN RICHARDSON,
Petitioner,
v.

Case No. 16-cv-05639-WHO (PR)
ORDER TO SHOW CAUSE

W. L. MONTGOMERY,
Respondent.

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INTRODUCTION

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Petitioner Jerry Alan Richardson seeks federal habeas relief from his state

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convictions. The amended petition for such relief has been reviewed under 28 U.S.C.

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§ 2243 and Rule 4 of the Rules Governing Section 2254 Cases and has been found to state

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cognizable claims. Accordingly, respondent shall file an answer or dispositive motion in

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response to the amended habeas petition on or before March 20, 2017, unless an

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extension is granted.

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Richardson has filed a motion for an evidentiary hearing (Dkt. No. 4), a motion for

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discovery (Dkt. No. 3), and a motion for leave to file an amended petition (Dkt. No. 6).

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For the reasons discussed below, Richardson’s motion for an evidentiary hearing (Dkt. No.

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4) is DENIED. The Court will rule on his motion for discovery at a later date. Respondent

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shall file a response to the discovery motion on or before February 21, 2017, unless an

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extension is granted. His motion for leave to file an amended petition (Dkt. No. 6) is

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GRANTED.

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BACKGROUND

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According to the petition, in 2012, a Santa Clara County Superior Court jury

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convicted Richardson of carjacking, robbery, and the theft and unlawful driving or taking

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of a vehicle. Richardson admitted the truth of the sentencing allegations and received a

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sentence of 22½ years to life in state prison.
DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in

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United States District Court
Northern District of California

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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).

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As grounds for federal habeas relief, Richardson claims that (1) the prosecutor

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committed misconduct, which included the failure to disclose exculpatory evidence; and

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(3) defense counsel rendered ineffective assistance. When liberally construed, these

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claims are cognizable on federal habeas review.

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MOTIONS

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Richardson moves for an evidentiary hearing, discovery, and leave to file an

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amended petition. (Dkt. Nos. 3, 4 and 6.)
His motion for an evidentiary hearing (Dkt. No. 4) is DENIED as premature. After

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the Court has reviewed the merits of Richardson’s claims, it will decide whether an

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evidentiary hearing is warranted.

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In his motion for discovery (Dkt. No. 3), Richardson asks for (1) a forensic report
from the Toyota Corolla; (2) internal data from his cell phone; and (3) a police report.
Unlike an ordinary civil litigant, a habeas petitioner must obtain court permission

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before he may conduct any discovery. Discovery may be taken only to the extent that the

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court, in the exercise of its discretion and for good cause shown, allows it. See Rule 6(a)

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of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.

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foll. § 2254. Good cause for discovery under Rule 6(a) is shown “where specific

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allegations before the court show reason to believe that the petitioner may, if the facts are

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fully developed, be able to demonstrate that he is . . . entitled to relief . . .” See Bracy v.
Gramley, 520 U.S. 899, 908-09 (1997) (citation omitted); Pham v. Terhune, 400 F.3d 740,

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United States District Court
Northern District of California

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743 (9th Cir. 2005). To determine whether good cause exists to allow discovery by

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petitioner, this Court will consider the nature of the habeas claim for which discovery is

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sought, the sort of discovery requested, the purported need for the discovery, and the value

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the discovery might have in the federal habeas proceedings.

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In order to determine whether good cause exists to allow discovery, the Court

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requires briefing from respondent. Accordingly, respondent shall file a response to the

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discovery motion on or before February 20, 2017, unless an extension is granted.

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Richardson’s motion for leave to file an amended petition is GRANTED. The
amended petition is the operative pleading in this action.
CONCLUSION
1. The Clerk shall serve a copy of this order, the amended 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 sixty (60)

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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 sixty (60) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent

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files such a motion, petitioner shall file with the Court and serve on respondent an
opposition or statement of non-opposition within thirty (30) days of the date the motion is

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United States District Court
Northern District of California

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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. Richardson’s motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED.

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9. Richardson’s motion for an evidentiary hearing (Dkt. No. 4) is DENIED.

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10. His motion for leave to file an amended petition (Dkt. No. 6) is GRANTED.

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11. The Clerk shall terminate Dkt. Nos. 2, 4 and 6.

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IT IS SO ORDERED.
Dated: January 6, 2017

_________________________
WILLIAM H. ORRICK
United States District Judge

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