Ware v. Chappelle

Filing 4

ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING MOTION FOR EVIDENTIARY HEARING; ORDER TO SHOW CAUSE by Judge Lucy H. Koh granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion for Hearing (Attachments: # 1 cert of service) (mpb, COURT STAFF) (Filed on 11/8/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALLEN KIRK WARE,
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Petitioner,
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vs.
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WARDEN KEVIN CHAPPELLE,

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Respondent.

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No. C 12-4082 LHK (PR)
ORDER GRANTING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS; DENYING MOTION
FOR EVIDENTIARY HEARING;
ORDER TO SHOW CAUSE
(Docket Nos. 2, 3)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 challenging California statutes relating to parole suitability.

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

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for an evidentiary hearing is DENIED without prejudice. The Court orders Respondent to show

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cause why a writ of habeas corpus should not be granted.

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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 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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Order Granting Motion for Leave to Proceed In Forma Pauperis; Denying Motion for Evidentiary Hearing; Order of
to Show Cause
G:\PRO-SE\SJ.LHK\HC.12\Ware082osc.wpd

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v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. §

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2243. 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 alleges that he was sentenced under the indeterminate sentencing law prior to

July 1, 1977. On some unspecified date, although he was found suitable for parole, his parole

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release date was later rescinded. Petitioner alleges that he is being forced to attend parole

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suitability hearings even though he has already completed the parole process. Petitioner claims

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that California Penal Code § 3041.5 violates his right against ex post facto laws and his right

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against cruel and unusual punishment. Liberally construed, these claims are cognizable for

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federal habeas review. The Court orders Respondent to show cause why the petition should not

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be granted as to the above issues.

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CONCLUSION
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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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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 state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition. If Petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the Court and serving it on Respondent within

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thirty days of the date the answer is filed.

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Order Granting Motion for Leave to Proceed In Forma Pauperis; Denying Motion for Evidentiary Hearing; Order of
to Show Cause
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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

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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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4.

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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This order terminates docket numbers 2 and 3.

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IT IS SO ORDERED.

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DATED:

11/7/12
LUCY H. KOH
United States District Judge

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Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal With Leave to Amend
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