Adame v. Curry

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Hamilton on 11/25/08. (pjhlc3, COURT STAFF) (Filed on 11/25/2008)

1 2 3 4 5 6 7 8 9 10 MANUEL ADAME, Petitioner, v. BEN CURRY, Warden, Respondent. _______________________________/ Petitioner Manuel Adame ("Adame"), a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. BACKGROUND On November 26, 1979, a jury in the Los Angeles County Superior Court convicted Adame of first degree murder and attempted robbery. Adame was sentenced to twenty-five years to life in prison with the possibility of parole. On March 9, 2006, the California Board of Parole ("Board") granted Adame parole. However, on August 4, 2006, the Governor of California reversed the Board's decision to grant parole. On September 5, 2006, Adame subsequently filed a petition for writ of habeas corpus with the Los Angeles County Superior Court challenging the Governor's decision, which the court denied on September 6, 2007. On March 12, 2008, Adame then filed a petition for writ of habeas corpus with the California Court of Appeal, which the court denied on May 2, 2008. The California Supreme Court denied Adame's petition for review on May 13, 2008. Adame filed the instant petition on November 20, 2008. No. C 08-5271 PJH ORDER TO SHOW CAUSE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10 A. Legal Standard

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). It shall "award the writ or issue an order directing the respondent to show cause why the writ 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. B. Petitioner's Legal Claim Adame raises one claim in his habeas petition. He contends that his continued incarceration due to the Governor's decision reversing the Board's grant of parole violates his due process rights because it is not supported by the evidence and is arbitrary, capricious, and fundamentally unfair. Liberally construed, the claim appears colorable under 28 U.S.C. § 2254 and merits an answer from respondent. CONCLUSION For the foregoing reasons and for good cause shown, 1. 2. Petitioner is ordered to pay the filing fee required in habeas cases. The clerk shall serve by certified mail a copy of this order and the petition and

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

all attachments thereto upon respondents. The clerk shall also serve a copy of this order on petitioner. 3. Respondents shall file with the court and serve on petitioner, within 60 days of

the date 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 issued. Respondent shall file with the answer and serve on petitioner a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition. 4. If the petitioner wishes to respond to the answer, he shall do so by filing a 2

1 2 3 4 5 6 7 8 9 10

traverse with the court and serving it on respondent within 30 days of his receipt of the answer. IT IS SO ORDERED.

Dated: November 25, 2008 ______________________________ PHYLLIS J. HAMILTON United States District Judge

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3