Womack v. Virga

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on 4/24/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 4/25/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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Petitioner,

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v.
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WARDEN TIM V. VIRGA,

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Respondent.

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No. C 11-1095 LHK (PR)
ORDER TO SHOW CAUSE

(Docket No. 3.)

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254,1 challenging his 2002 conviction and sentence. Petitioner has paid

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the filing fee. The Court orders Respondent to show cause why a writ of habeas corpus should
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not be granted.
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DISCUSSION
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A.

Standard of Review

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a state court only on the ground that he is in custody in
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Petitioner has also filed a notice of appeal and a motion for certificate of appealability.
Neither pleading is applicable at this stage in the litigation. Accordingly, Petitioner’s motion for
certificate of appealability is DENIED without prejudice.
Order to Show Cause
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court 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 the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
Petitioner alleges that, on May 22, 2002, he entered into a plea agreement and pleaded no

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contest to failing to register as a sex offender. Petitioner claims that he only agreed to plead no

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contest because his public defender promised him that the Public Defender’s Office would file a

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notice of appeal on his behalf and raise twelve specific issues After Petitioner was convicted, no

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one raised those issues on appeal. Liberally construed, Petitioner’s claim of ineffective

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assistance of appellate counsel is cognizable. The Court orders Respondent to show cause why

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the petition should not be granted as to the above issue.

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CONCLUSION

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1.

Petitioner’s motion for certificate of appealability is DENIED without prejudice..

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2.

The Clerk shall serve by mail a copy of this order and the petition (docket no. 1)

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and all attachments thereto upon the Respondent and the Respondent’s attorney, the Attorney

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General of the State of California. The Clerk shall also serve a copy of this order on Petitioner.

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3.

Respondent shall file with the Court and serve on Petitioner, within ninety days

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of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of

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the underlying state criminal record that have been transcribed previously and that are relevant to

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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 days of the date the answer is filed.
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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
Order to Show Cause
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2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion,

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Petitioner shall file with the court and serve on Respondent an opposition or statement of non-

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opposition within thirty days of the date the motion is filed, and Respondent shall file with the

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court and serve on Petitioner a reply within fifteen days of the date any opposition is filed.

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5.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that

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all communications with the Court must be served on Respondent by mailing a true copy of the

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document to Respondent’s counsel. Petitioner must keep the court and all parties informed of

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any change of address by filing a separate paper captioned “Notice of Change of Address.” He

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b).

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IT IS SO ORDERED.
DATED: 4/24/11
LUCY H. KOH
United States District Judge

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Order to Show Cause
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