Gonzales v. Harrington

Filing 3

ORDER TO SHOW CAUSE. 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. Signed by Judge James Ware on 7/8/2010. (ecg, COURT STAFF) (Filed on 7/8/2010)

Gonzales v. Harrington

Doc. 3

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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

ANASTACIO GONZALES, Petitioner, vs. KELLY HARRINGTON, Warden, Respondent.

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No. C 10-01299 JW (PR) ORDER TO SHOW CAUSE

Petitioner, a state prisoner incarcerated at the Kern Valley State Prison in Susanville, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

BACKGROUND According to the petition, petitioner was found guilty in Santa Clara County Superior Court of five counts of Penal Code § 269 (rape). (Pet. 2.) Petitioner was sentenced to 75 years in state prison. (Id.) Petitioner appealed the conviction; the state appellate court affirmed the conviction and the state high court denied review. (Id. at 3.) Petitioner filed the instant federal habeas petition on March 26, 2010.
Order to Show Cause P:\PRO-SE\SJ.JW\HC.10\Gonzales01299_osc&ifp.wpd

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DISCUSSION A. Standard of Review This court may entertain a petition for a 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). It 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." Id. § 2243. B. Legal Claims Petitioner raises the following grounds for federal habeas relief: 1) ineffective assistance of counsel on various grounds; and 2) the trial court error in admitting into evidence the testimony of several witnesses. Liberally construed, petitioner's claims appear cognizable under § 2254 and merit an answer from respondent.

United States District Court

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For the Northern District of California

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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

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.
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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. Petitioner is reminded that all communications with the court must be

United States District Court

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For the Northern District of California

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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.
July 8, 2010

DATED:

JAMES WARE United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ANASTACIO GONZALES JR, Petitioner, v. KELLY HARRINGTON, Warden, Respondent. /

Case Number: CV10-01299 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. 7/8/2010 , 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.

Anastacio Gonzales F-34323 Kern Valley State Prison P. O. Box 5102 Delano, CA Dated: 7/8/2010 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk