Robinson v. Walker et al

Filing 12

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 Edward J. Davila on 9/28/2011. (ecg, COURT STAFF) (Filed on 9/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ANTHONY L. ROBINSON,
Petitioner,

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vs.

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TIM VIRGA, Warden,
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Respondent.
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No. C 11-00816 EJD (PR)
ORDER TO SHOW CAUSE

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Petitioner, a state prisoner currently incarcerated at the California State Prison

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- Sacramento in Represa, has filed a pro se petition for a writ of habeas corpus under

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28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

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BACKGROUND

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According to the petition, Petitioner was found guilty in Monterey County

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Superior Court of two counts of misdemeanor battery without serious injury, battery

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by prisoner on non-confined person, and a prior felony conviction. (Pet. at 1.)

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Petitioner was sentenced to six years in state prison on November 29, 2001. (Id.)

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Petitioner filed state habeas petitions, with the California Supreme Court
denying review in November 2009. (Id. at 4.) Petitioner filed the instant federal
Order to Show Cause
P:\PRO-SE\SJ.EJD\HC.11\00816Robinson_osc.wpd

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habeas petition on February 22, 2011.

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DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a).
It shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that

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For the Northern District of California

United States District Court

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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B.

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Legal Claims
Petitioner raises the following claims for federal habeas relief: 1) the trial

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court erred by imposing an excessive sentence in violation of Cunningham v.

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California, 549 U.S. 270 (2007), (Pet., Attach. “A”); 2) the trial court erred in using

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a prior felony in sentencing, (id., Attach. “B”); 3) the trial court erred when it

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applied a sentence enhancement to double his sentence beyond the statutory

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maximum for a non-violent or serious felony, (id., Attach. “C”); and 4) the trial

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court erred when it imposed an excessive restitution fine, (id., Attach. “D”).

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Liberally construed, claims 1-3 appear cognizable under § 2254 and merit an answer

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from Respondent. However, Petitioner’s restitution claim must be dismissed

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because success on this claim would not impact the length of his confinement; he

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would still have to serve the rest of his prison sentence in the same manner. See

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Bailey v. Hill, 599 F.3d 976, 984 (2010). Accordingly, claim 4 is DISMISSED for

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failure to state a claim .
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The Clerk shall serve by certified mail a copy of this order and the

Order to Show Cause
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petition and all attachments thereto on Respondent and Respondent’s attorney, the

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Attorney General of the State of California. The Clerk also shall serve a copy of this

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order on Petitioner.

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2.

Respondent shall file with the court and serve on petitioner, within

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sixty (60) days of the issuance of this order, an answer conforming in all respects to

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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be issued. Respondent shall file with the answer and serve

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on Petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the
petition.

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For the Northern District of California

United States District Court

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

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traverse with the Court and serving it on Respondent within thirty (30) days of his

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receipt of the answer.

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3.

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

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of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall

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file with the Court and serve on Respondent an opposition or statement of non-

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opposition within thirty (30) days of receipt of the motion, and Respondent shall

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file with the court and serve on Petitioner a reply within fifteen (15) days of receipt

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of any opposition.

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4.

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

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counsel. Petitioner must also keep the Court and all parties informed of any change

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of address.

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DATED:

September 28, 2011

EDWARD J. DAVILA
United States District Judge

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Order to Show Cause
P:\PRO-SE\SJ.EJD\HC.11\00816Robinson_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ANTHONY L ROBINSON,

Case Number: CV11-00816 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
TIM VIRGA, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
9/28/2011
That on
, 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.

Anthony L. Robinson E-91884
California State Prison (SAC)
P. O. Box 29
Represa, CA 95671
Dated:

9/28/2011
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk