Gonzalez v. O'Keefe

Filing 5

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 5/12/2014.. Signed by Judge Lucy H. Koh on 3/12/14. (mpb, COURT STAFF) (Filed on 3/13/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUTOLIO GONZALEZ GONZALEZ,
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Petitioner,
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vs.
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DONALD O’KEEFE,
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Respondent.
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____________________________________)

No. C 12-2681 LHK (PR)
ORDER TO SHOW CAUSE

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Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an
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extradition order. Petitioner has paid the filing fee. For the reasons that follow, the court orders
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respondent to show cause why the petition should not be granted.
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DISCUSSION
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A.

Standard of Review

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Section 2241 allows “the Supreme Court, any justice thereof, the district courts and any
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circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C.
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§ 2241(a). An extradition may be challenged by way of a petition for writ of habeas corpus in
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federal court. See Roberts v. Reilly, 116 U.S. 80 (1885); Prasoprat v. Benov, 421 F.3d 1009,
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1013 (9th Cir. 2005). A district court shall “award the writ or issue an order directing the
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respondent to show cause why the writ should not be granted, unless it appears from the
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application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
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Order to Show Cause
P:\PRO-SE\LHK\HC.12\Gonzalez681oscextra.wpd

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Summary dismissal is appropriate only where the allegations in the petition are vague or

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conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908

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F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

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Petitioner’s Claim
Petitioner is challenging the extradition order, dated April 10, 2012, in In the Matter of

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the Extradition of Eustolio Gonzales Gonzales, No. 09-70576 DMR (N.D. Cal. 2012).

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Specifically, petitioner claims that, because there was a three year delay between the April 2006

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date of the underlying charge which originated in Mexico, and the 2009 date upon which the

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extradition complaint was filed against petitioner, the process violated the Sixth Amendment’s

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Speedy Trial Clause. The court orders respondent to show cause why the petition should not be

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granted as to petitioner’s claim.

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CONCLUSION
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The Clerk shall serve by mail a copy of this order and the petition and all

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attachments thereto (docket no. 1) upon the respondent and the respondent’s attorney, the United

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States Attorney’s Office. The Clerk shall also serve a copy of this order on petitioner.

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2.

Respondent shall file with the court and serve on petitioner, within sixty 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 record that have been transcribed previously and that are relevant to a determination

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of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do

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so by filing a traverse with the court and serving it on respondent within thirty days of the date

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the answer is filed.

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3.

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 sixty 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 days of the date the motion is filed, and respondent shall file
Order to Show Cause
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with the court and serve on petitioner a reply within fourteen days of the date any opposition is

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filed.

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IT IS SO ORDERED.
DATED:

3/12/14
LUCY H. KOH
United States District Judge

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Order to Show Cause
P:\PRO-SE\LHK\HC.12\Gonzalez681oscextra.wpd

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