Breedlove v. Grounds

Filing 4

Order Granting Leave to Proceed In Forma Pauperis; ORDER TO SHOW CAUSE. Signed by Judge Ronald M. Whyte on 6/24/11. (jg, COURT STAFF) (Filed on 6/24/2011)

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1 2 3 *E-FILED - 6/24/11* 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 CALVIN RAY BREEDLOVE, 11 Petitioner, 12 vs. 13 14 WARDEN RANDY GROUNDS, 15 Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 11-2379 RMW (PR) ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE 16 17 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. Petitioner’s application to proceed in forma pauperis is GRANTED. The 19 court orders respondent to show cause why a writ of habeas corpus should not be granted. 20 BACKGROUND 21 According to the petition, petitioner pleaded guilty and was convicted in Fresno Superior 22 Court of second degree murder. The trial court sentenced petitioner to a term of fifteen years to 23 life. In August 2009, the Board of Prison Hearings denied parole for the seventh time. 24 DISCUSSION 25 A. Standard of Review 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a state court only on the ground that he is in custody in 28 Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause P:\PRO-SE\SJ.Rmw\HC.11\Breedlove379osc.wpd 1 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose 2 v. Hodges, 423 U.S. 19, 21 (1975). 3 A district court shall “award the writ or issue an order directing the respondent to show 4 cause why the writ should not be granted, unless it appears from the application that the 5 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 6 B. 7 Petitioner’s Claims As grounds for federal habeas relief, petitioner raises two claims alleging that his right to 8 due process was violated because the State breached the plea agreement. Liberally construed, 9 petitioner’s allegations are sufficient to require a response. The court orders respondent to show 10 cause why the petition should not be granted. 11 12 CONCLUSION 1. The clerk shall serve by mail a copy of this order and the petition (docket no. 1) 13 and all attachments thereto upon the respondent and the respondent’s attorney, the Attorney 14 General of the State of California. The clerk shall also serve a copy of this order on the 15 petitioner. 16 2. Respondent shall file with the court and serve on petitioner, within ninety days of 17 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing 18 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 19 Respondent shall file with the answer and serve on petitioner a copy of all portions of the 20 underlying state criminal record that have been transcribed previously and that are relevant to a 21 determination of the issues presented by the petition. 22 23 24 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. 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 25 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 26 2254 Cases within ninety days of the date this order is filed. If respondent files such a motion, 27 petitioner shall file with the court and serve on respondent an opposition or statement of non- 28 opposition within thirty days of the date the motion is filed, and respondent shall file with the Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause 2 P:\PRO-SE\SJ.Rmw\HC.11\Breedlove379osc.wpd 1 2 court and serve on petitioner a reply within fifteen days of the date any opposition is filed. 4. It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that 3 all communications with the court must be served on respondent by mailing a true copy of the 4 document to respondent’s counsel. Petitioner must keep the court and all parties informed of any 5 change of address by filing a separate paper captioned “Notice of Change of Address.” He must 6 comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal 7 of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 8 9 10 IT IS SO ORDERED. 6/24/11 DATED: _______________ RONALD M. WHYTE United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause 3 P:\PRO-SE\SJ.Rmw\HC.11\Breedlove379osc.wpd

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