Hunt v. Superior Court County of Santa Clara

Filing 11

ORDER DIRECTING RESPONDENT TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED. Habeas Answer due by 6/7/2013. Signed by Judge Yvonne Gonzalez Rogers on 4/8/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 12-05120 YGR (PR)

ZACKERY HUNT,

ORDER DIRECTING RESPONDENT TO
SHOW CAUSE WHY THE PETITION
SHOULD NOT BE GRANTED

Petitioner,
vs.
HEIDI M. LACKNER, Acting Warden,

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Respondent.

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This action commenced on October 2, 2012, when Petitioner filed what appeared to be a

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form from state court, entitled "Petition for Writ of Mandate." Petitioner then filed a request to

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amend the petition to be considered a habeas corpus action; however, he did not attach a completed

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federal habeas form. Therefore, in an Order dated January 30, 2013, the Court determined that it

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could not fairly evaluate the petition in its present state. The Court granted Petitioner leave to

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proceed in forma pauperis and dismissed the petition with leave to amend.

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On February 8, 2013, Petitioner filed his amended petition. He has also filed a document

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entitled, "Request for Order to Show Cause," which is construed as a motion requesting the Court to

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screen the amended petition. His motion to screen is GRANTED. It does not appear from the face

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of the amended petition that it is without merit. Good cause appearing, the Court hereby issues the

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following orders:

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1.

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

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(Docket No. 8) and all attachments thereto upon Respondent and Respondent's attorney, the

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Attorney General of the State of California. The Clerk shall also serve a copy of this Order on

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Petitioner at his current address.

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2.

Respondent shall file with this Court and serve upon Petitioner, within one-hundred

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and twenty (120) days of the issuance of this Order, an Answer conforming in all respects to Rule 5

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of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not

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be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records

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that have been transcribed previously and that are relevant to a determination of the issues presented

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by the petition.

United States District Court
For the Northern District of California

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3.

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

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the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should

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Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days

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after the date Petitioner is served with Respondent's Answer.

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4.

Respondent may file with this Court and serve upon Petitioner, within sixty (60) days

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of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set

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forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If

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Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an

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opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the

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motion, and Respondent shall file with the Court and serve on Petitioner a reply within fourteen

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(14) days of receipt of any opposition.

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5.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

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and Respondent informed of any change of address and must comply with the Court's orders in a

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timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose

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address changes while an action is pending must promptly file a notice of change of address

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specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint

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when: (1) mail directed to the pro se party by the Court has been returned to the Court as not

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deliverable, and (2) the Court fails to receive within sixty days of this return a written

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communication from the pro se party indicating a current address. See L.R. 3-11(b); see also
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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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 granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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7.

Heidi M. Lackner, the current acting warden of the prison where Petitioner is

incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of

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Civil Procedure.

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United States District Court
For the Northern District of California

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8.

Petitioner's filing entitled, "Request for Order to Show Cause," is construed as a

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motion requesting the Court to screen the amended petition. The motion to screen (Docket No. 10)

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is GRANTED.

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9.

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IT IS SO ORDERED.

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This Order terminates Docket No. 10.

DATED: April 8, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\HC.12\Hunt5120.OSC.wpd

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