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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 RODNEY B. BARNO, Petitioner, 12 13 14 15 Case No. 17-cv-05310-WHO (PR) ORDER TO SHOW CAUSE v. SHAWN HATTON, Respondent. Dkt. No. 2 16 17 INTRODUCTION 18 Petitioner Rodney Barno seeks federal habeas relief from a prison disciplinary 19 decision. The petition for such relief has been reviewed under 28 U.S.C. § 2243 and Rule 20 4 of the Rules Governing Section 2254 Cases and has been found to state cognizable 21 claims. Accordingly, on or before February 2, 2018, respondent shall file an answer or 22 dispositive motion in response to the habeas petition. 23 BACKGROUND 24 According to the petition, in 2016, Barno’s jailors at the California Substance 25 Abuse Treatment Facility and State Prison found him guilty of willfully delaying a peace 26 officer in the performance of his duty by refusing a compatible cellmate. In consequence, 27 Barno lost 90 days of credits and was deprived of various privileges. 28 1 2 Barno’s attempts to overturn the decision in state court were unsuccessful. This federal habeas petition followed. 3 4 DISCUSSION This Court may entertain a petition for writ of habeas corpus “in behalf of a person 5 in custody pursuant to the judgment of a State court only on the ground that he is in 6 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 7 § 2254(a). A district court considering an application for a writ of habeas corpus shall 8 “award the writ or issue an order directing the respondent to show cause why the writ 9 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 11 United States District Court Northern District of California 10 only where the allegations in the petition are vague or conclusory, palpably incredible, or 12 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 13 As grounds for federal habeas relief, Barno alleges respondent violated his right to 14 due process when it found him guilty of willfully delaying a peace officer. When liberally 15 construed, this claim is cognizable on federal habeas review. 16 CONCLUSION 17 1. The Clerk shall serve a copy of this order, the petition and all attachments 18 thereto, on respondent and respondent’s counsel, the Attorney General for the State of 19 California. The Clerk shall also serve a copy of this order on petitioner. 20 2. On or before February 2, 2018, respondent shall file with the Court and serve 21 on petitioner, an answer conforming in all respects to Rule 5 of the Rules Governing 22 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 23 based on petitioner’s cognizable claims. Respondent shall file with the answer and serve 24 on petitioner a copy of all portions of the state trial record that previously have been 25 transcribed and that are relevant to a determination of the issues presented by the petition. 26 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 27 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 28 answer is filed. 2 1 4. In lieu of an answer, respondent may file, on or before February 2, 2018, a 2 motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 3 Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 4 petitioner shall file with the Court and serve on respondent an opposition or statement of 5 non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 6 file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 7 opposition is filed. 8 9 10 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 11 Court and respondent informed of any change of address and must comply with the 12 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 13 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 14 15 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. 16 8. Barno’s application to proceed in forma pauperis (Dkt. No. 2) is GRANTED. 17 9. The Clerk shall terminate Dkt. No. 2. 18 IT IS SO ORDERED. 19 Dated: December 4, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 20 21 22 23 24 25 26 27 28 3

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