Hjeltness v. Hornbeck

Filing 10

ORDER TO SHOW CAUSE, Motions terminated: 5 MOTION for Leave to Proceed in forma pauperis filed by Susan M. Hjeltness.. Signed by Judge ARMSTRONG on 8/25/10. (lrc, COURT STAFF) (Filed on 8/25/2010)

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Hjeltness v. Hornbeck Doc. 10 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Javier Cavazos, the current warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUSAN HJELTNESS, Petitioner, v. JAVIER CAVAZOS, Acting Warden, Respondent. / No. C 10-01858 SBA (PR) ORDER GRANTING IN FORMA PAUPERIS STATUS; DIRECTING RESPONDENT TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED; AND DENYING MOTION FOR APPOINTMENT OF COUNSEL Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner also seeks leave to proceed in forma pauperis. It does not appear from the face of the petition that it is without merit. Good cause appearing, the Court hereby issues the following orders: 1. 2. Petitioner's application to proceed in forma pauperis is GRANTED. The Clerk of the Court shall serve a copy of this Order and the petition and all attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California.1 The Clerk shall also serve a copy of this Order on Petitioner at her current address. 3. Respondent shall file with this Court and serve upon Petitioner, within one-hundred and twenty (120) 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 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 4. If Petitioner wishes to respond to the Answer, she shall do so by filing a Traverse with the Court and serving it on Respondent within sixty (60) days of her receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days after the date Petitioner is served with Respondent's Answer. 5. Respondent may file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, 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 to the motion within sixty (60) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 6. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Petitioner must also serve on Respondent's counsel all communications with the Court by mailing a true copy of the document to Respondent's counsel. 7. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline sought to be extended. 8. Petitioner's motion for appointment of counsel (docket no. 7) is DENIED without prejudice. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary hearing is required, the decision to appoint counsel in habeas corpus proceedings is within the discretion of the district court). Petitioner clearly presented her claims for relief in the petition and an order to show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no background in law, denial of appointment of counsel within discretion of district court where petitioner clearly presented issues in petition and accompanying memorandum). 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This denial is without prejudice to the Court's sua sponte reconsideration should the Court find an evidentiary hearing necessary following consideration of the merits of Petitioner's claims. See Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary hearing is required). 8. This Order terminates Docket nos. 5 and 7. IT IS SO ORDERED. DATED: 8/25/10 SAUNDRA BROWN ARMSTRONG United States District Judge G:\PRO-SE\SBA\HC.10\Hjeltness1858.OSC.wpd 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUSAN HJELTNESS, Plaintiff, v. TINA HORNBECK et al, Defendant. / Case Number: CV10-01858 SBA 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 August 25, 2010, 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. Susan M. Hjeltness X26775 Valley State Prison for Women P.O Box 96 Chowchilla, CA 93610 Dated: August 25, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk G:\PRO-SE\SBA\HC.10\Hjeltness1858.OSC.wpd 4

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