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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*E-FILED - 6/24/11*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CALVIN RAY BREEDLOVE,
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Petitioner,
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vs.
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WARDEN RANDY GROUNDS,

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Respondent.

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No. C 11-2379 RMW (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA
PAUPERIS; ORDER TO SHOW
CAUSE

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. Petitioner’s application to proceed in forma pauperis is GRANTED. The
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court orders respondent to show cause why a writ of habeas corpus should not be granted.
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BACKGROUND
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According to the petition, petitioner pleaded guilty and was convicted in Fresno Superior
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Court of second degree murder. The trial court sentenced petitioner to a term of fifteen years to
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life. In August 2009, the Board of Prison Hearings denied parole for the seventh time.
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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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Order Granting Leave to Proceed In Forma Pauperis; 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
As grounds for federal habeas relief, petitioner raises two claims alleging that his right to

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due process was violated because the State breached the plea agreement. Liberally construed,

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petitioner’s allegations are sufficient to require a response. The court orders respondent to show

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cause why the petition should not be granted.

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CONCLUSION
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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 the

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petitioner.

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2.

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

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

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

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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

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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

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

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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
Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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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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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 any

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

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

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
6/24/11
DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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