Rincon v. Spearman

Filing 5

ORDER Granting 3 Motion for Leave to Proceed in forma pauperis filed by Jose Rincon and directing Respondent to Show Cause why the Petition should not be granted. Habeas Answer due by 1/4/2016. Signed by Magistrate Judge Donna M. Ryu on 11/2/15. (ig, COURT STAFF) (Filed on 11/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE RINCON,

Case No. 15-cv-03779-DMR (PR)

Petitioner,
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v.
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M. E. SPEARMAN, Warden,

ORDER GRANTING IN FORMA
PAUPERIS STATUS AND DIRECTING
RESPONDENT TO SHOW CAUSE
WHY THE PETITION SHOULD NOT
BE GRANTED

Respondent.

United States District Court
Northern District of California

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Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. He seeks federal habeas relief from his gang validation. He has also filed a

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motion for leave to proceed in forma pauperis. This action has been assigned to the undersigned

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Magistrate Judge.

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Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may

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conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the

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United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

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On August 18, 2015, Petitioner consented to magistrate judge jurisdiction in this matter.
Dkt. 1 at 7.
It does not appear from the face of the petition that it is without merit. However, the

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petition may be untimely. Petitioner was validated as a prison gang associate in 2012 (Dkt. 1 at

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9), but the instant petition was not filed until 2015. Respondent is directed to consider first

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whether a motion to dismiss on grounds of untimeliness is the most appropriate first response to

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the petition. If Respondent so concludes, he may file a motion to dismiss as directed below,

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though he is not required to do so.

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

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1.

Petitioner’s application to proceed in forma pauperis is GRANTED.

2.

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The Clerk of the Court shall serve a Magistrate Judge jurisdiction consent form, a

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copy of this Order, as well as the petition and all attachments thereto upon Respondent and

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Respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve

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a copy of this Order on Petitioner at his current address.
3.

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Within twenty-eight (28) days of the issuance of this Order, Respondent shall

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complete and file the Magistrate Judge jurisdiction consent form to indicate whether he consents

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or declines to proceed before the assigned Magistrate Judge. Respondent is free to withhold

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consent without adverse consequences. If Respondent consents to a Magistrate Judge’s

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jurisdiction, this case will be handled by the undersigned Magistrate Judge. If Respondent
declines, the case will be reassigned to a District Judge. Whether Respondent consents or declines

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United States District Court
Northern District of California

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to proceed before the assigned Magistrate Judge, the parties shall abide by the briefing schedule

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below.

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4.

Respondent shall file with this court and serve upon Petitioner, within sixty (60)

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

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.

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Respondent shall file with the Answer a copy of all portions of the relevant state records that have

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

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petition.

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5.

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

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

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Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty

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(60) days after the date Petitioner is served with Respondent’s Answer.

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6.

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

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days of the issuance of this Order, 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 Section

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2254 Cases. If Respondent files a motion to dismiss, Petitioner shall file with the court and serve

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on Respondent an opposition or statement of non-opposition to the motion within sixty (60) days

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of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply
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within fourteen (14) days of receipt of any opposition.
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It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the

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court and Respondent informed of any change of address and must comply with the court’s orders

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

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

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address specifying the new address. See L.R. 3-11(a). The court may dismiss a pro se action

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without prejudice when: (1) mail directed to the pro se party by the court has been returned to the

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court as not 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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United States District Court
Northern District of California

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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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9.

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IT IS SO ORDERED.

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This Order terminates Docket No. 3.

Dated: November 2, 2015
______________________________________
DONNA M. RYU
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE RINCON,

Case No. 4:15-cv-03779-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M.E. SPEARMAN,
Defendant.

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United States District Court
Northern District of California

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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 November 2, 2015, 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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Jose Rincon ID: K-02465
CTF-Central/CW-334-Low
P.O. Box 689
Soledad, CA 93960

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Dated: November 2, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU

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