Stockton v. Adams et al

Filing 11

ORDER Grantig Motion for Reconsideration; ORDER TO SHOW CAUSE. Habeas Answer due by 9/21/2012. Signed by Judge Ronald M. Whyte on 7/23/12. (jg, COURT STAFF) (Filed on 7/23/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERT JOHN STOCKTON, JR.,

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Petitioner,
vs.

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DERREL JOHN ADAMS, Warden,
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Respondent.
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No. C 11-5562 RMW (PR)
ORDER GRANTING MOTION FOR
RECONSIDERATION; ORDER TO
SHOW CAUSE

(Docket No. 7.)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254 challenging the prison’s determination that petitioner was an active
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gang member. Petitioner states that the decision resulted in his continued indefinite placement in
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the secured housing unit (“SHU”). He seeks relief overturning his validation as a gang member
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and ordering his release from the SHU. On March 6, 2012, the court dismissed petitioner’s
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petition with leave to amend, concluding that his claim was more appropriately addressed in a
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federal civil rights action. On April 6, 2012, petitioner filed a motion for reconsideration, asking
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the court to permit his habeas petition to go forward without transforming it into a civil rights
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complaint, and filed an amended petition.
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Order Granting Motion for Reconsideration; Order to Show Cause
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DISCUSSION
A.

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Motion for Reconsideration
Petitioner asserts that his petition for writ of habeas corpus should be permitted to

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proceed because his gang validation adversely affects the likelihood of his release. Further,

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petitioner adds that he neglected to include in his original petition that placement in the SHU

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denies and deprives him of earning good time credits, which affects his minimum eligible release

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date. Upon consideration of petitioner’s assertion that he is being denied and deprived of good

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time credits, the court GRANTS petitioner’s motion for reconsideration and issues an order to

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the respondent to show cause why the petition should not be granted.

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B.

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Standard of Review
This court may entertain a petition for a 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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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. Summary dismissal is

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appropriate only where the allegations in the petition are vague or conclusory, palpably

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incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.

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1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

Petitioner’s Claims

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Petitioner alleges his rights were violated when he was validated as a gang associate in

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2009, which resulted in his retention in the Secured Housing Unit for an indeterminate period.

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Petitioner seeks relief that would overturn his gang validation and compel his release from the

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SHU. Liberally construed, petitioner’s claims are sufficient to require a response. The court

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orders respondent to show cause why the petition should not be granted.

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Order Granting Motion for Reconsideration; Order to Show Cause
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CONCLUSION
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The clerk shall serve by mail a copy of this order and the amended petition

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(docket no. 8) and all attachments thereto upon the respondent and the respondent’s attorney, the

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Attorney 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 twenty-eight (28) days of the date the motion is filed, and respondent shall

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file with the court and serve on petitioner a reply within fourteen (14) days of the date any

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opposition is filed.

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4.

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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This order terminates docket number 7.

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Order Granting Motion for Reconsideration; Order to Show Cause
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IT IS SO ORDERED.
DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Granting Motion for Reconsideration; Order to Show Cause
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P:\pro-se\sj.rmw\hc.04\Flores382disrem

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ROBERT JOHN STOCKTON JR,

Case Number: CV11-05562 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DERREL G ADAMS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 23, 2012, 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.

Robert John Stockton J-80992
C3-109 Security Housing Unit
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532
Dated: July 23, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk