James v. Superior Court of California
Filing
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ORDER TO SHOW CAUSE. Signed by Judge ARMSTRONG on 5/21/13. (lrc, COURT STAFF) (Filed on 5/23/2013)
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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 13-00885 SBA (PR)
MICHAEL JAMES,
ORDER TO SHOW CAUSE
Petitioner,
v.
JEFFREY A. BEARD, Secretary of California
Department of Corrections and Rehabilitation
(CDCR),
Respondent.
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Petitioner, a state parolee proceeding pro se, has filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee.
The rules governing relief under 28 U.S.C. § 2254 require a person in custody pursuant to the
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judgment of a state court to name the "'state officer having custody'" of him as the respondent.
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Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules
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Governing Habeas Corpus Cases Under Section 2254). This person typically is the warden of the
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facility in which the petitioner is incarcerated. See Stanley v. California Supreme Court, 21 F.3d
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359, 360 (9th Cir. 1994). Failure to name the petitioner's custodian as a respondent deprives federal
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courts of personal jurisdiction, see id., but the allegations of the petition are to be liberally construed
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when considering whether the proper respondent has been named, see Belgarde v. Montana, 123
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F.3d 1210, 1214 (9th Cir. 1997). The "'state officer having custody'" also may include "'the chief
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officer in charge of state penal institutions.'" Ortiz-Sandoval, 81 F.3d at 894 (quoting Rule 2(a)
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advisory committee's note).
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Here, Petitioner has named as Respondent the "Superior Court of California." However, the
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proper respondent should be "'the chief officer in charge of state penal institutions,'" who has
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"custody" of Petitioner, a parolee. See Rule 2(a) advisory committee's note; Fed. R. Civ. P. 19(a).
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Accordingly, Secretary of CDCR Jeffrey A. Beard is named as the respondent in this action in place
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of “Superior Court of California.” See Ortiz-Sandoval, 81 F.3d at 894.
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United States District Court
For the Northern District of California
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Further, 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.
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 the State
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of California. The Clerk shall also serve a copy of this Order on 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.
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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. Petitioner must also serve on Respondent's counsel all communications with the
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Court by mailing a true copy of the document to Respondent's counsel.
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6.
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.
United States District Court
For the Northern District of California
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7.
Secretary of CDCR Jeffrey A. Beard is substituted as Respondent pursuant Rule 2(a)
of the Rules Governing Habeas Corpus Cases Under Section 2254.
IT IS SO ORDERED.
DATED: 5/21/13
SAUNDRA BROWN ARMSTRONG
United States District Judge
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G:\PRO-SE\SBA\HC.13\James0885.OSC.wpd
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL JAMES,
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United States District Court
For the Northern District of California
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Case Number: CV13-00885 SBA
Plaintiff,
CERTIFICATE OF SERVICE
v.
SUPERIOR COURT OF CALIFORNIA et al,
Defendant.
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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 May 23, 2013, 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.
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Michael James AD2470 / AQU348
8117 Sunkist Drive
Oakland, CA 94605
Dated: May 23, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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G:\PRO-SE\SBA\HC.13\James0885.OSC.wpd
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