Burns v. Curry

Filing 5

ORDER TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 2/6/08. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 2/6/2008)

Burns v. Curry

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Case 3:08-cv-00163-PJH

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1 2 3 4 5 6 7 8 9 10 vs. B. CURRY, Warden, Respondent. / SCOTT BURNS, Petitioner, No. C 08-0163 PJH (PR) ORDER TO SHOW CAUSE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Standard of Review

Petitioner, a California prisoner currently incarcerated at the Correctional Training Facility, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. The petition attacks denial of parole, so venue is proper in this district, which is where petitioner is confined. See 28 U.S.C. § 2241(d). BACKGROUND Petitioner was convicted of second degree murder in 1988. He received a sentence of seventeen years to life in prison. He alleges that he has exhausted these parole claims by way of state habeas petitions. 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 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "`[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970). "Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal." Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring). B. Legal Claims As grounds for federal habeas relief, petitioner asserts that: (1) the circumstances of his crime did not constitute "some evidence" to support the September 29, 2005, denial of parole; (2) the Board's conclusion that the motive for the crime was "inexplicable and very trivial" was contradictory, in that it could not be both, nor did the Board say what the motive was or discuss it, rendering the denial arbitrary and a violation of due process; (3) the Board's statement that he had been convicted of robbery prior to the commitment offense was not supported by any evidence and was false, so reliance on that factor as a ground for denying parole violated due process; (4) there was no evidence to support the Board's finding that petitioner had an unstable social history; (5) there was no evidence to support the Board's conclusion that petitioner had not participated in enough self-help and therapy programs; (6) the notations of minor offenses (CDC 128's) ("chronos"), the last in 2003, and his rule violation reports, the last in 2002, were not "some evidence" to support denial of parole; (7) the Board's requirement that he engage in additional "self-help" and therapy, when none is available to petitioner and there is no evidence in the record that petitioner needs it, was arbitrary and capricious; (8) it was a violation of due process for the Board to give petitioner a multi-year denial, as California law does not allow a multi-year denial in his circumstances; (9) his counsel at the parole hearing was ineffective; and (10) the Board is 2

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For the Northern District of California

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precluded from relying on the same facts to deny parole at every hearing. These claims are sufficient to require a response. See Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003) (warning that repeated denial of parole based on unchanging characteristics of offense might violate due process); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir.

2002) (due process requires that at least "some evidence" support parole denial).
CONCLUSION For the foregoing reasons and for good cause shown, 1. The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner. 3. Respondent shall file with the court and serve on petitioner, within sixty days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of his receipt of the answer. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of non-opposition within thirty days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fifteen days of receipt of any opposition. 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. Petitioner must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for 3

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). IT IS SO ORDERED. Dated: February 6, 2007. PHYLLIS J. HAMILTON United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

SCOTT BURNS, Petitioner, v. B. CURRY, Respondent. /

Case Number: CV08-00163 PJH CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 6, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Scott Burns D-99247 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 Dated: February 6, 2008 Richard W. Wieking, Clerk By: Nichole Heuerman, Deputy Clerk