Thomas v. Santoro

Filing 6

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 12/19/2016. Signed by Judge Kandis A. Westmore on 10/19/2016. (kawlc2, COURT STAFF) (Filed on 10/19/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

MARK R. THOMAS,

Case No. 16-cv-05646-KAW

Plaintiff,
8
v.

ORDER TO SHOW CAUSE

9
10

KELLY SANTORO,

Re: Dkt. No. 1

Defendant.

United States District Court
Northern District of California

11
12
13

Petitioner Mark R. Thomas, a California prisoner, filed this petition for a writ of habeas

14

corpus pursuant to 28 U.S.C. § 2254, challenging his state criminal conviction. Petitioner claims

15

that trial counsel rendered ineffective assistance of counsel by failing to challenge the State's

16

expert testimony regarding the single-tower methodology to establish the time and location of

17

cellular phone calls, which was used to place Petitioner at the crime scene. (Pet. for Writ of

18

Habeas Corpus at 8, Dkt. No. 1; see also Pet. for Writ of Habeas Corpus, Exh. C, Schenk Dec. at

19

¶¶ 14-18.)

20

This Court may entertain a petition for writ of habeas corpus "in behalf of a person in

21

custody pursuant to the judgment of a state court only on the ground that he is in custody in

22

violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The

23

district court shall "award the writ or issue an order directing the respondent to show cause why

24

the writ should not be granted, unless it appears from the application that the application or person

25

detained is not entitled thereto." 28 U.S.C. § 2243. Having reviewed the petition, the Court finds

26

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

27

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

28

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

1

Accordingly:

2

1.

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

3

upon Respondent and Respondent's counsel. The Clerk shall also serve a copy of this Order on

4

Petitioner and Petitioner's counsel.

5

2.

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

6

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

7

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

8

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

9

(c) portions of the trial and appellate record that are relevant to a determination of the issues
presented by the petition, and (d) a certificate of service. If Petitioner wishes to respond to the

11
United States District Court
Northern District of California

10

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

12

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

13

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

14

answer.

15

3.

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

16

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

17

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

18

of non-opposition to the motion within 30 days of receipt of the motion. Respondent shall serve

19

and file a reply within 15 days of receipt of any opposition.

20
21
22
23

4.

The parties shall file their Consent or Declination to Magistrate Judge Jurisdiction

on or before the date Respondent's answer is due.
IT IS SO ORDERED.
Dated: October 19, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

24
25
26
27
28
2