Johnson v. Holland

Filing 9

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 3/20/2017. Signed by Judge Richard Seeborg on 1/13/17. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 1/13/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 WELFORD LEE JOHNSON, United States District Court Northern District of California Petitioner, Case No. 16-cv-06601-RS (PR) 12 v. ORDER TO SHOW CAUSE 13 14 KIM HOLLAND, Respondent. 15 16 INTRODUCTION 17 18 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 19 convictions. The petition for such relief is now before the Court for review pursuant to 20 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 21 The petition appears untimely. Petitioner was convicted in 1997 and the petition 22 was not filed until 2016, which is certainly outside the one-year statute of limitations 23 period for filing a federal habeas petition. See 28 U.S.C. § 2244(d)(1). Respondent is 24 directed to consider first if the petition is in fact untimely. If respondent concludes 25 that it is untimely, he may file a motion to dismiss on such grounds, though he is not 26 required to do so. 27 28 1 BACKGROUND 2 According to the petition, in 1997, in the Santa Clara County Superior Court, 3 petitioner pleaded guilty to charges of robbery and reckless driving. He was sentenced to 4 30 years and 4 months in state prison. 5 6 DISCUSSION 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 8 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 9 § 2254(a). A district court considering an application for a writ of habeas corpus shall 10 “award the writ or issue an order directing the respondent to show cause why the writ 11 United States District Court Northern District of California 7 should not be granted, unless it appears from the application that the applicant or person 12 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 13 only where the allegations in the petition are vague or conclusory, palpably incredible, or 14 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 As grounds for federal habeas relief, petitioner alleges his sentence is 16 unconstitutional for the reasons listed in the petition. When liberally construed, these 17 claims are cognizable on federal habeas review. 18 CONCLUSION 19 1. The Clerk shall serve a copy of this order, the petition and all attachments 20 thereto, on respondent and respondent’s counsel, the Attorney General for the State of 21 California. The Clerk shall also serve a copy of this order on petitioner. 22 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) 23 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 24 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 25 not be granted based on petitioner’s cognizable claims. Respondent shall file with the 26 answer and serve on petitioner a copy of all portions of the state trial record that previously 27 have been transcribed and that are relevant to a determination of the issues presented by ORDER TO SHOW CAUSE CASE NO. 16-cv-06601-RS (PR) 28 2 1 2 the petition. 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 3 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 4 answer is filed. 5 4. In lieu of an answer, respondent may file, within sixty (60) days of the date this order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 7 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent 8 files such a motion, petitioner shall file with the Court and serve on respondent an 9 opposition or statement of non-opposition within thirty (30) days of the date the motion is 10 filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen 11 United States District Court Northern District of California 6 (15) days of the date any opposition is filed. 12 13 14 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 15 Court and respondent informed of any change of address and must comply with the 16 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 17 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 19 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. 20 8. The Court notes that the filing fee has been paid. 21 IT IS SO ORDERED. 22 Dated: January___, 2017 13 _________________________ RICHARD SEEBORG United States District Judge 23 24 25 26 27 ORDER TO SHOW CAUSE CASE NO. 16-cv-06601-RS (PR) 28 3

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