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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?