Turner v. Cash

Filing 4

OORDER TO SHOW CAUSE; ORDER by Judge Lucy H. Koh denying 2 Motion for Equitable Tolling without prejudice; granting 3 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 4/10/2012) Modified on 4/10/2012 (mpb, COURT STAFF).

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LAFONZO R. TURNER,
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Petitioner,
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vs.
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BRENDA M. CASH,
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Respondent.
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No. C 12-0381 LHK (PR)
ORDER TO SHOW CAUSE;
GRANTING MOTION FOR LEAVE
TO PROCEED IN FORMA
PAUPERIS; DENYING MOTION
FOR EQUITABLE TOLLING
WITHOUT PREJUDICE
(Docket Nos. 2, 3)

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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. Petitioner’s motion for leave to proceed in forma pauperis is
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GRANTED. The Court orders Respondent to show cause why a writ of habeas corpus should
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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 Show Cause; Granting Motion for Leave to Proceed In Forma Pauperis; Denying Motion for Equitable Tolling Without Prejudice
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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
Petitioner raises the following claims in his petition: (1) the prosecutor committed

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misconduct during her argument, and trial counsel was ineffective for failing to object to it; (2)

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the trial court erred in failing to give an instruction on manslaughter as a lesser-included offense;

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and (3) Petitioner was denied a right to a fair trial when the jury repeatedly saw him in handcuffs

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and shackles. Liberally construed, Petitioner’s allegations are sufficient to warrant a response.

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C.

Motion for Equitable Tolling

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Petitioner requests that the Court find his petition timely based on extraordinary

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circumstances. Petitioner’s motion is DENIED without prejudice. Respondent will be ordered

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to produce the relevant state records, and, may file a motion to dismiss based on timeliness. If

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Respondent does so, Petitioner may file an opposition in which he may certainly argue that he is

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entitled to equitable tolling. At this time, however, the timeliness of Petitioner’s petition is not at

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issue.

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CONCLUSION
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Petitioner’s motion for leave to proceed in forma pauperis is GRANTED.

Petitioner’s motion for equitable tolling is DENIED.
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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 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
Order to Show Cause; Granting Motion for Leave to Proceed In Forma Pauperis; Denying Motion for Equitable Tolling Without Prejudice
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Court and serving it on Respondent within thirty days of the date the answer is filed.

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4.

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

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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.
DATED:

4/9/12
LUCY H. KOH
United States District Judge

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Order to Show Cause; Granting Motion for Leave to Proceed In Forma Pauperis; Denying Motion for Equitable Tolling Without Prejudice
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