Brown v. Tampkins

Filing 6

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR PETITIONER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED. Habeas Answer due by 3/29/2013. Show Cause Deadline 2/21/13. Signed by Judge Phyllis J. Hamilton on 1/28/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/28/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 LAWRENCE S. BROWN, Petitioner, 8 9 vs. ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR PETITIONER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED CYNTHIA TAMPKINS, Respondent. 11 For the Northern District of California United States District Court 10 No. C 13-0016 PJH (PR) / 12 13 Petitioner, a California prisoner currently incarcerated at the California Rehabilitation 14 Center has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 He also applied for leave to proceed in forma pauperis. Petitioner was convicted in 16 Monterey County, which is in this district, so venue is proper here. See 28 U.S.C. § 17 2241(d). Petitioner was sentenced to a term of six years for burglary and other related 18 counts. 19 According to the petition, the state appeal ended with denial of a petition for review 20 on January 17, 2007. Docket No. 2 at 15. Petitioner has also included an opinion from the 21 Monterey County Superior Court that denied a state habeas petition on March 28, 2012. 22 Id. at 20. The Superior Court denied that petition which alleged petitioner’s appellate 23 attorney rendered ineffective assistance of counsel noting that petitioner previously raised 24 the same claim in prior habeas petition that had been denied on December 8, 2008. Id. 25 The petition was therefore denied as untimely and successive. Id. Petitioner requests this 26 court to look beyond the procedural default and untimeliness issues as he states he did not 27 know he could raise these issues. Id. at 2. However, it seems that petitioner did in fact 28 previously raise these issues in the prior habeas petition that was denied by the Superior 1 Court in 2008. Petitioner shall show cause why this federal petition should not be 2 dismissed as untimely and procedurally defaulted. 3 CONCLUSION 4 1. Leave to proceed in forma pauperis (Docket No. 5) is GRANTED. 5 2. Petitioner shall show cause by February 21, 2013, why this petition should not 6 be dismissed as untimely and procedurally defaulted. If he does not, the case will be 7 dismissed. 8 9 IT IS SO ORDERED. Dated: January 28, 2013. PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 12 G:\PRO-SE\PJH\HC.13\Brown0016.osc-p.wpd 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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