Burns v. Swarthout

Filing 19

ORDER TO SHOW CAUSE. The Clerk shall serve by certified mail a copy of this order and the petition (Docket No. 11) and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Habeas Answer due by 4/26/2013. Signed by Judge Edward J. Davila on 2/22/2013. (ecg, COURT STAFF) (Filed on 2/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD L. BURNS,

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For the Northern District of California

United States District Court

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Petitioner,

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vs.

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GARY SWARTHOUT, Warden,
Respondent.

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No. C 11-06301 EJD (PR)
ORDER TO SHOW CAUSE

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Petitioner, a state prisoner incarcerated at the California State Prison-Solano

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has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.

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Petitioner has paid the filing fee.

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BACKGROUND

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According to the amended petition (Docket No. 11), Petitioner pleaded guilty

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in San Mateo County Superior Court to several counts of assault with a firearm.

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Petitioner was sentenced to seventeen years and eight months in state prison. (Am.

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Pet. at 1.)

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Petitioner filed state habeas petitions, with the California Supreme Court

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denying review in September 2011. (Id. at 5.) Petitioner filed the instant federal

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habeas petition on November 28, 2011.
Order To Show Cause
06301Burns_osc.wpd

DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a).
It 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

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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For the Northern District of California

United States District Court

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B.

Legal Claims
Petitioner claims the following grounds for federal habeas relief: (1) counsel

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was ineffective in allowing Petitioner plead to the maximum sentence; and (2) the

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trial court coerced Petitioner into providing the plea and erred by accepting it.

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Liberally construed, these claim are cognizable under § 2254 and merit an answer

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from Respondent.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The Clerk shall serve by certified mail a copy of this order and the

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petition (Docket No. 11) and all attachments thereto on Respondent and

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Respondent’s attorney, the Attorney General of the State of California. The Clerk

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also shall serve a copy of this order on Petitioner.

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2.

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

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sixty (60) days of the issuance of this order, an answer conforming in all respects to

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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be issued. Respondent shall file with the answer and serve

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on Petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the
Order To Show Cause
06301Burns_osc.wpd

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petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the Court and serving it on Respondent within thirty (30) days of his

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receipt of the answer.

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3.

Respondent may file a motion to dismiss on procedural grounds in lieu

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

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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall

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file with the Court and serve on Respondent an opposition or statement of non-

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opposition within thirty (30) days of receipt of the motion, and Respondent shall
file with the court and serve on Petitioner a reply within fifteen (15) days of receipt

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For the Northern District of California

United States District Court

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of any opposition.

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4.

Petitioner is reminded that all communications with the court must be

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served on Respondent by mailing a true copy of the document to Respondent’s

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counsel. Petitioner must also keep the Court and all parties informed of any change

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of address.

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DATED:

2/22/2013

EDWARD J. DAVILA
United States District Judge

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Order To Show Cause
06301Burns_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RICHARD L. BURNS,

Case Number CV 11-06301 EJD (PR)

Petitioner,
CERTIFICATE OF SERVICE
v.
GARY SWARTHOUT, Warden,
Respondent.
/
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 ______________________________, I SERVED a true and correct copy(ies) of the
2/25/2013
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) inter-office delivery receptacle located in the Clerk's office.

Richard L. Burns
AA-7046
Bldg. 1-244
California State Prison, Solano
P. O. Box 4000
Vacaville, CA 65696-4000

2/25/2013
DATED: ________________________

Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk