Latimore v. Lewis

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 6/16/2014. Signed by Judge Saundra Brown Armstrong on 4/17/2014. (ndr, COURT STAFF) (Filed on 4/17/2014)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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LARRY LATIMORE,

Case No: C 11-5527 SBA

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Petitioner,

ORDER TO SHOW CAUSE

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vs.
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CLARK E. DUCART, Warden, California

9 State Prison, Pelican Bay,1

Respondent.

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Following a jury trial in the Alameda County Superior Court, Petitioner Larry

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Latimore was convicted of: kidnapping to commit robbery (Count One), Cal. Pen. Code,

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§ 209(b)(1); second degree robbery (Count Two), id. § 211; and assault with a semi-

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automatic firearm (Count Three), id. § 245(b). A firearm use enhancement, id.

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§ 12022.5(a)(1), was found true as to all counts; firearm enhancements, id. § 12022.53(b) &

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(c), were found true as to Count Two; and a § 12022.53(b) enhancement was found true as

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to Count One.

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Through counsel, Petitioner has filed a Petition for Writ of Habeas Corpus, pursuant

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to 28 U.S.C. § 2254. He alleges various claims of instructional error and for insufficiency

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of the evidence. It does not appear from the face of the petition that it is without merit.

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Good cause appearing, the Court hereby issues the following orders:

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1.

The Clerk of the Court shall serve a copy of this Order and the petition and all

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attachments thereto upon Respondent and Respondent’s attorney, the Attorney General of

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the State of California. The Clerk shall also serve a copy of this Order on Petitioner’s

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Clark E. Ducart, 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
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counsel of record: Robert Joseph Beles, Law Offices of Robert J. Beles, One Kaiser Plaza,

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Suite 2300, Oakland, CA 94612.

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2.

Respondent shall file with this Court and serve upon Petitioner, within sixty

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(60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be issued. Respondent shall file with the Answer a copy of all portions of the

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relevant state records that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition.

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3.

If Petitioner wishes to respond to the Answer, he shall do so by filing a

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Traverse with the Court and serving it on Respondent within thirty (30) days of his receipt

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of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and

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ready for decision thirty (30) days after the date Petitioner is served with Respondent’s

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Answer.

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4.

Respondent may file with this Court and serve upon Petitioner, within sixty

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(60) days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of

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an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court

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and serve on Respondent an opposition or statement of non-opposition to the motion within

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twenty-eight (28) days of receipt of the motion, and Respondent shall file with the Court

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and serve on Petitioner a reply within fourteen (14) days of receipt of any opposition.

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5.

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.
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Extensions of time are not favored, though reasonable extensions will be

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granted. Any motion for an extension of time must be filed no later than fourteen (14) days

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prior to the deadline sought to be extended.

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IT IS SO ORDERED.
Dated: April 17, 2014

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______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge