Barno v. Hatton

Filing 4

ORDER TO SHOW CAUSE and granting 2 MOTION for Leave to Proceed in forma pauperis. Habeas Answer due by 2/2/2018. Signed by Judge William H. Orrick on 12/4/2017. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 12/4/2017)

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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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RODNEY B. BARNO,
Petitioner,

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Case No. 17-cv-05310-WHO (PR)
ORDER TO SHOW CAUSE

v.
SHAWN HATTON,
Respondent.

Dkt. No. 2

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INTRODUCTION

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Petitioner Rodney Barno seeks federal habeas relief from a prison disciplinary

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decision. The petition for such relief has been reviewed under 28 U.S.C. § 2243 and Rule

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4 of the Rules Governing Section 2254 Cases and has been found to state cognizable

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claims. Accordingly, on or before February 2, 2018, respondent shall file an answer or

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dispositive motion in response to the habeas petition.

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BACKGROUND

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According to the petition, in 2016, Barno’s jailors at the California Substance

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Abuse Treatment Facility and State Prison found him guilty of willfully delaying a peace

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officer in the performance of his duty by refusing a compatible cellmate. In consequence,

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Barno lost 90 days of credits and was deprived of various privileges.

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Barno’s attempts to overturn the decision in state court were unsuccessful. This
federal habeas petition followed.

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DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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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
detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

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United States District Court
Northern District of California

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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, Barno alleges respondent violated his right to

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due process when it found him guilty of willfully delaying a peace officer. When liberally

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construed, this claim is cognizable on federal habeas review.

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CONCLUSION

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1. The Clerk shall serve a copy of this order, the 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. On or before February 2, 2018, respondent shall file with the Court and serve

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on petitioner, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted

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based on petitioner’s cognizable claims. Respondent shall file with the answer and serve

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on petitioner a copy of all portions of the state trial record that previously have been

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transcribed and that are relevant to a determination of the issues presented by 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, on or before February 2, 2018, a

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motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to

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Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the Court and serve on respondent an opposition or statement of

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non-opposition within thirty (30) days of the date the motion is filed, and respondent shall

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file with the Court and serve on petitioner a reply within fifteen (15) days of the date any

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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

United States District Court
Northern District of California

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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. Barno’s application to proceed in forma pauperis (Dkt. No. 2) is GRANTED.

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9. The Clerk shall terminate Dkt. No. 2.

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IT IS SO ORDERED.

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Dated: December 4, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

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