Chavez v. Warden

Filing 5

ORDER TO SHOW CAUSE; DENYING 3 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT. The Clerk shall serve by certified mail a copy of this order and thepetition, and all attachments thereto, on Respondent and Respondents attorney, the Attorney G eneral of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Respondent shall file with the court and serve on petitioner, within sixty (60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Habeas Answer due by 8/20/2012. Motions terminated: 3 MOTION for Leave to Proceed in forma pauperis filed by James D. Chavez. Signed by Judge Edward J. Davila on 6/18/2012. (ecg, COURT STAFF) (Filed on 6/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JAMES D. CHAVEZ,

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Petitioner,

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vs.

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WARDEN,
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Respondent.
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No. C 12-01017 EJD (PR)
ORDER TO SHOW CAUSE;
DENYING MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AS
MOOT

(Docket No. 3)

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Petitioner, a California prisoner currently incarcerated at the Pelican Bay State

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Prison in Crescent City, has filed a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254, challenging the forfeiture of good time credits. Petitioner filed a motion

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for leave to proceed in forma pauperis, (Docket No. 3), and then subsequently paid the

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filing. (See Docket No. 4.)

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DISCUSSION
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 he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28
Order to Show Cause; Denying IFP
G:\PRO-SE\SJ.EJD\HC.12\01017Chavez_osc(rvr).wpd

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U.S.C. § 2254(a).

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It shall “award the writ or issue an order directing the respondent to show cause

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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.” Id. § 2243.

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B.

Legal Claims

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Petitioner alleges that he was wrongfully found guilty of a Rules Violation

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Report for “harassment for another person... either directly or indirectly through the use

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of th email or other means.” (Pet. at 3.) Petitioner asserts that the evidence does not

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support the guilty finding. Petitioner was assessed 30 days credit forfeiture.1 Liberally
construed, Petitioner’s claim appears colorable under § 2254 as a violation of

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For the Northern District of California

United States District Court

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Petitioner’s right to due process and merits an answer from Respondent. See Young v.

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Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991).

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CONCLUSION

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For the foregoing reasons,

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

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petition, and all attachments thereto, on Respondent and Respondent’s attorney, the

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Attorney General of the State of California. The Clerk also shall serve a copy of this

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order on Petitioner.

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2.

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

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(60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be issued. Respondent shall file with the answer and serve on Petitioner a

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copy of all portions of the state trial record that have been transcribed previously and

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that are relevant to a determination of the issues presented by the petition.

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Petitioner was also assessed 90 days forfeiture of canteen privileges which
were restored at the Director’s Level of review.
Order to Show Cause; Denying IFP
G:\PRO-SE\SJ.EJD\HC.12\01017Chavez_osc(rvr).wpd

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

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with the court and serving it on Respondent within thirty (30) days of his receipt of the

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answer.

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3.

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

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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 file

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

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within thirty (30) days of receipt of the motion, and Respondent shall file with the

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court and serve on Petitioner a reply within fifteen (15) days of receipt of any

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For the Northern District of California

United States District Court

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opposition.
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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 counsel.

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Petitioner must keep the court and all parties informed of any change of address by

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filing a separate paper captioned “Notice of Change of Address.” He must comply with

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the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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5.

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

DENIED as moot because he paid the filing fee. (Docket No. 3.)
This order terminates Docket No. 3.

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DATED:

6/18/2012

EDWARD J. DAVILA
United States District Judge

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Order to Show Cause; Denying IFP
G:\PRO-SE\SJ.EJD\HC.12\01017Chavez_osc(rvr).wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAMES D CHAVEZ,

Case Number: CV12-01017 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
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.
6/19/2012
That on
, 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.

James D. Chavez T 27420
Pelican Bay State Prison
P. O. Box 7500
Crescent City, CA 95531
Dated:

6/19/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk