Travis v. Davey et al

Filing 5

ORDER TO SHOW CAUSE. Habeas Answer due by 1/6/2015. Signed by Judge Kandis A. Westmore on 11/07/2014. (kawlc2S, COURT STAFF) (Filed on 11/7/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM TRAVIS,

Case No. 14-cv-04068-KAW

Plaintiff.
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v.

ORDER TO SHOW CAUSE

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Re: Dkt. No. 1

DAVE DAVEY,
Defendant.

United States District Court
Northern District of California

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William Travis ("Petitioner"), a state prisoner, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The Court hereby orders Dave Davey ("Respondent") to show
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cause why a writ of habeas corpus should not be granted.
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DISCUSSION
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A.

Standard of review

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This Court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a state court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The
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district court shall "award the writ or issue an order directing the respondent to show cause why
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the writ should not be granted, unless it appears from the application that the applicant or person
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detained is not entitled thereto." 28 U.S.C. § 2243.
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B.

Petitioner's claims

Following a jury trial, Petitioner was convicted of attempted premeditated murder, with a
gun enhancement. In his petition, he claims that his Fifth, Sixth, and Fourteenth Amendment
rights were violated when (1) the prosecution failed to disclose the identity and location of a

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material witness learned prior to the onset of trial and (2) the prosecution purposely instructed the

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investigator not to take a discoverable statement from this material witness until after the

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conclusion of trial, both in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner also

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claims that if defense counsel had sufficient information to locate the witness, defense counsel was

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ineffective for failing to do so, in violation of Petitioner's right to effective assistance of counsel

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under the Sixth and Fourteenth Amendments. Upon review of the petition, the Court finds that

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Petitioner's claims are not vague or conclusory, palpably incredible, or patently frivolous or false.

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See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The Court, therefore, orders

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Respondent to show cause why a writ of habeas corpus should not be granted.
CONCLUSION

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United States District Court
Northern District of California

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Good cause appearing, the Court hereby orders as follows:

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1.

The Clerk shall serve a copy of this order, the petition, and all attachments thereto

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upon Respondent and Respondent's counsel, the Attorney General of the State of California. The

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Clerk shall also serve a copy of this Order on Petitioner and Petitioner's counsel.

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2.

Within 60 days of this order, Respondent shall file an answer conforming in all

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respects to Rule 5 of the Rules Governing § 2254 Cases, showing cause why a writ of habeas

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corpus should not be granted. Respondent shall file the answer together with (a) a memorandum

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of points and authorities, (b) the matters defined in Rule 5 of the Rules Governing § 2254 Cases,

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(c) portions of the trial and appellate record that are relevant to a determination of the issues

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presented by the petition, and (d) a certificate of service. If Petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the Court and serving it on Respondent within 30

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days of his receipt of the answer. If Petitioner does not file a traverse, the petition will be deemed

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submitted and ready for decision 30 days after the date Petitioner is served with Respondent's

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answer.

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3.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing § 2254

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Cases. If Respondent files such a motion, Petitioner shall serve and file an opposition or statement

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of non-opposition to the motion within 30 days of receipt of the motion. Respondent shall serve
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and file a reply within 15 days of receipt of any opposition.
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Respondent shall file his Consent or Declination to Magistrate Judge Jurisdiction

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on or before the date his answer is due.

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IT IS SO ORDERED.

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Dated: 11/07/14
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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