Lopez et al Ayers

Filing 5

ORDER TO SHOW CAUSE. The Clerk SHALL serve by certified mail a copy of this order and the petition on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also SHALL serve a copy of this order on petitioner. Signed by Judge James Ware on 4/22/2009. (ecg, COURT STAFF) (Filed on 4/29/2009) Modified on 5/5/2009 (cv, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

VICTOR LOPEZ, Petitioner, vs. ROBERT AYERS, JR., Warden, Respondent.

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No. C 08-05341 JW (PR) ORDER TO SHOW CAUSE

Petitioner, an inmate at San Quentin State Prison ("SQSP") proceeding pro se, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the decision of the Board of Parole Hearings (the "Board") to deny parole. Petitioner has paid the filing fee.

BACKGROUND According to the petition, petitioner was found guilty by a jury in Los Angeles County Superior Court of kidnap for robbery, armed with a firearm and possession of marijuana and was sentenced to a term of seven years-to-life in state prison in 1989. On May 3, 2007, the Board found petitioner unsuitable for parole after a parole suitability hearing. Petitioner challenged the Board's decision and
Order to Show Cause P:\PRO-SE\SJ.JW\HC.08\Lopez05341_osc(parole).wpd

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filed habeas petitions in the state courts. The California Supreme Court denied the petition on November 12, 2008. Petitioner filed the instant federal petition on November 25, 2008.

DISCUSSION A. Standard of Review This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. B. Petitioner's Claims Petitioner seeks federal habeas corpus relief from the Board's May 3, 2007 decision finding him not suitable for parole on the grounds that: (1) the Board's decision violates due process because it was not supported by some evidence, (Pet. 9); (2) the Board used unconstitutionally vague terms when it found the commitment offense was "very cruel and callous," (id. at 15); (3) the Board violated due process when it failed to "balance the cruelty and callousness of the commitment offense against the passage of time and other factors," (id. at 12); (4) there is no nexus between the commitment offense and petitioner's present dangerousness; and (5) the Board's reasoning that the commitment offense was carried out in a way that "mental anguish was inflicted upon the victim" was unconstitutionally vague and violated due process, (id. at 32). Liberally construed, petitioner's claims appear cognizable under § 2254 and merit an answer from respondent. See Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003) (finding that initial refusal to set
Order to Show Cause P:\PRO-SE\SJ.JW\HC.08\Lopez05341_osc(parole).wpd

United States District Court

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For the Northern District of California

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parole date for prisoner with 15-to-life sentence implicated prisoner's liberty interest in release on parole which cannot be denied without adequate procedural due process protections).

CONCLUSION For the foregoing reasons and for good cause shown, 1. The clerk shall serve by certified mail a copy of this order and the

petition and all attachments thereto on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner. 2. Respondent shall file with the court and serve on petitioner, within

United States District Court

11
For the Northern District of California

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sixty (60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty (30) days of his receipt of the answer. 3. Respondent may file a motion to dismiss on procedural grounds in lieu

of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of nonopposition within thirty (30) days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fifteen (15) days of receipt of any opposition. 4.
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Petitioner is reminded that all communications with the court must be
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served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must also keep the court and all parties informed of any change of address.
April 22, 2009

DATED:

JAMES WARE United States District Judge

United States District Court

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For the Northern District of California

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Order to Show Cause P:\PRO-SE\SJ.JW\HC.08\Lopez05341_osc(parole).wpd

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

VICTOR LOPEZ, Petitioner, v. ROBERT AYERS, JR., Warden, Respondent. /

Case Number: CV08-05341 JW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. April 29, 2009 , I SERVED a true and correct copy(ies) of the That on 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.

Victor Lopez H-70404 San Quentin State Prison San Quentin, Ca 94974 Dated: April 29, 2009 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk