Conner v. Lewis

Filing 10

ORDER TO RE-OPEN by Judge Lucy H. Koh ;granting 9 Motion for Leave to Appeal in forma pauperis;ORDER TO SHOW CAUSE (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 1/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SCOTT CONNER,

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Petitioner,

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v.

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WARDEN GREG LEWIS,

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Respondent.

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No. C 11-4464 LHK (PR)
ORDER TO RE-OPEN; GRANTING
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS;
ORDER TO SHOW CAUSE
(Docket No. 9.)

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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. The Clerk is ordered to RE-OPEN this action. Petitioner’s
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motion for leave to proceed in forma pauperis is GRANTED. The Court orders Respondent to
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show cause why a writ of habeas corpus should 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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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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Order to Re-Open; Granting Motion for Leave to Proceed In Forma Pauperis; Order to Show Cause
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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
In 2009, plaintiff was validated as an associate of the Aryan Brotherhood prison gang,

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and placed into the Security Housing Unit. Plaintiff alleges that this decision violated the right

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to due process. Liberally construed, Plaintiff states a cognizable claim for relief.

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CONCLUSION

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1.

The Clerk shall RE-OPEN this action.

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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

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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

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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
Order to Re-Open; Granting Motion for Leave to Proceed In Forma Pauperis; Order to Show Cause
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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.
1/3/12
DATED:

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LUCY H. KOH
United States District Judge

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Order to Re-Open; Granting Motion for Leave to Proceed In Forma Pauperis; Order to Show Cause
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