Cunningham v. Grounds

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on 1/11/12. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 1/12/2012)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 JOHN EDWARD CUNNINGHAM, JR., 13 Petitioner, 14 v. 15 WARDEN R. GROUNDS, 16 Respondent. ) ) ) ) ) ) ) ) ) ) No. C 11-5576 LHK (PR) ORDER TO SHOW CAUSE 17 Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. The Court orders Respondent to 19 show cause why a writ of habeas corpus should not be granted. 20 DISCUSSION 21 A. Standard of Review 22 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 23 custody pursuant to the judgment of a state court only on the ground that he is in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose 25 v. Hodges, 423 U.S. 19, 21 (1975). 26 A district court shall “award the writ or issue an order directing the respondent to show 27 cause why the writ should not be granted, unless it appears from the application that the 28 Order to Show Cause P:\pro-se\sj.lhk\hc.11\Cunningham576osc 1 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 2 B. 3 Petitioner’s Claims In 2003, Petitioner was sentenced to a term of 16 years after being convicted of one count 4 of continuous sexual abuse. He alleges that (1) the trial court committed prejudicial error when 5 it permitted the prosecution to introduce unreliable hearsay statements, and (2) the trial court 6 violated his right to a jury trial when it improperly imposed the upper-term sentence based on its 7 own fact-finding. Liberally construed, Plaintiff states cognizable claims for relief. 8 9 CONCLUSION 1. The Clerk shall serve by mail a copy of this order and the petition (docket no. 1) 10 and all attachments thereto upon the Respondent and the Respondent’s attorney, the Attorney 11 General of the State of California. The Clerk shall also serve a copy of this order on Petitioner. 12 2. Respondent shall file with the Court and serve on Petitioner, within ninety days 13 of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules 14 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 15 granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of 16 the underlying state criminal record that have been transcribed previously and that are relevant to 17 a determination of the issues presented by the petition. 18 19 20 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. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 21 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 22 2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion, 23 Petitioner shall file with the court and serve on Respondent an opposition or statement of non- 24 opposition within thirty days of the date the motion is filed, and Respondent shall file with the 25 court and serve on Petitioner a reply within fifteen days of the date any opposition is filed. 26 5. It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that 27 all communications with the Court must be served on Respondent by mailing a true copy of the 28 document to Respondent’s counsel. Petitioner must keep the court and all parties informed of Order to Show Cause P:\pro-se\sj.lhk\hc.11\Cunningham576osc 2 1 any change of address by filing a separate paper captioned “Notice of Change of Address.” He 2 must comply with the Court’s orders in a timely fashion. Failure to do so may result in the 3 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 4 41(b). 5 IT IS SO ORDERED. 1/11/12 DATED: 6 LUCY H. KOH United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order to Show Cause P:\pro-se\sj.lhk\hc.11\Cunningham576osc 3

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