Reyes v. Headpass

Filing 10

ORDER TO SHOW CAUSE. Signed by Judge Ronald M. Whyte on 5/11/10. (jg, COURT STAFF) (Filed on 5/11/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ABEL P. REYES, Petitioner, vs. HEADPASS, Warden, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA *E-FILED - 5/11/10*

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No. C 10-1838 RMW (PR) ORDER TO SHOW CAUSE

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of California challenging a disciplinary hearing. Petitioner's motion to proceed in forma pauperis was granted. On April 29, 2010, the Eastern District of California transferred the case to the Northern District of California. The court orders respondent to show cause as to why the petition should not be granted. BACKGROUND According to his petition, petitioner was issued a Rules Violation Report (RVR) at Pleasant Valley State Prison for violation of the California Code of Regulations, Title 15 § 3005, battery on an inmate with a weapon. He pled not guilty and was provided with an institutional disciplinary hearing on December 23, 2007. Petitioner was found guilty as charged. He was assessed 360 days loss of behavioral credit and a two year term in the Secured Housing Unit.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

Petitioner filed the instant petition alleging that his due process rights were violated during his disciplinary hearing. Petitioner filed a state habeas petition which was denied on December 19, 2008. Petitioner's state habeas petition to the California Court of Appeal was denied on August 21, 2009. Petitioner's state habeas petition to the California Supreme Court was denied on February 18, 2010. The underlying petition was filed on March 25, 2010. DISCUSSION 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 As grounds for federal habeas relief, petitioner alleges that his rights to due process were violated during his disciplinary hearing. Petitioner's procedural due process challenges to his disciplinary proceeding are properly brought in a habeas petition because success in this action would shorten the length of his confinement. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998) (holding that any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code). Liberally construed, petitioner's allegation is sufficient to require a response. CONCLUSION 1. The clerk shall serve by mail a copy of this order and the petition

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

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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 granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state parole 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 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 non-opposition within thirty days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fifteen days of receipt of any opposition. 4. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that

all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court and all parties informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. 5/11/10 DATED:

RONALD M. WHYTE United States District Judge

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