Flemming v. Kernan et al

Filing 8

ORDER TO SHOW CAUSE Habeas Answer due by 3/20/2018. Signed by Judge Alsup on 1/19/2018. (whalc1, COURT STAFF) (Filed on 1/19/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAJUAN FLEMING,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C 17-07358 WHA

v.

ORDER TO SHOW CAUSE

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SCOTT KERNAN and RON RACKLEY,

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Defendants.

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This Court may entertain a petition for a writ of habeas corpus from a prisoner who 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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2241(c)(3). Upon receipt of such petition, this Court must “forthwith award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243. Summary dismissal of a petition is appropriate only where the allegations in the

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petition are “vague,” “conclusory” or “palpably incredible.” Hendricks v. Vasquez, 908 F.2d

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490, 491 (9th Cir. 1990).

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In the current case, petitioner is incarcerated at Sacramento State Prison in Represa,

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California. He therefore is in custody for purposes of habeas corpus relief. Furthermore,

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petitioner alleges multiple violations of his constitutional rights, including that his trial counsel

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rendered ineffective assistance of counsel. Thus, petitioner has sustained his burden with respect

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to requiring the state to answer his petition.

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Respondents SHALL SHOW CAUSE within SIXTY DAYS of this order why the petition for
writ of habeas corpus should not be granted. Respondents shall file with the answer and serve
on petitioner a copy of all portions of the record that are relevant to a determination of the issues

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presented by the petition. Petitioner shall serve and file any traverse to such answer not later

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than THIRTY DAYS from submission of the answer, whereupon the Court shall deem the matter

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submitted on the pleadings. The clerk SHALL SERVE this order on petitioner and respondents.

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IT IS SO ORDERED.

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Dated: January 19, 2018.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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