Marlon Jessie Blacher v. L S McEwen
Filing
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ORDER TO SHOW CAUSE; Granting Leave to Proceed in Forma Pauperis. Habeas Answer due by 2/1/2013. Signed by Judge Ronald M. Whyte on 11/30/12. (jg, COURT STAFF) (Filed on 12/3/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARLOH JESSIE BLACHER,
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Petitioner,
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vs.
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L.S. MCEWEN,
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Respondent.
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No. C 12-4775 RMW (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA
PAUPERIS; ORDER TO SHOW
CAUSE
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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. Petitioner’s application to proceed in forma pauperis is GRANTED. The
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court orders respondent to show cause why a writ of habeas corpus should not be granted.
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BACKGROUND
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According to the petition, petitioner was convicted in Contra Costa County Superior
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Court for murder and related charges, and sentenced to a term of twenty-five years to life.
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Petitioner filed the underlying petition on August 20, 2012.
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DISCUSSION
A.
Standard of Review
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
Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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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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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
As grounds for federal habeas relief, petitioner alleges that: (1) he received ineffective
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assistance of counsel; (2) the prosecutor committed misconduct; (3) there was insufficient
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evidence to support his convictions; (4) the trial court gave erroneous jury instructions; and (5)
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he was denied a fair trial when the jury observed him in physical restraints. Liberally construed,
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the court orders respondent to show cause why the petition should not be granted.
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CONCLUSION
1.
Petitioner’s motion for leave to proceed in forma pauperis is GRANTED. The
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clerk shall serve by mail a copy of this order and the petition (docket no. 1) and all attachments
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thereto upon the respondent and the respondent’s attorney, the Attorney General of the State of
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California. The clerk shall also serve a copy of this order on the 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.
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within thirty days of the date the answer is filed.
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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 Granting Leave to Proceed In Forma Pauperis; 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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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 any
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change of address by filing a separate paper captioned “Notice of Change of Address.” He must
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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal
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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge
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Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
MARLON JESSIE BLACHER,
Case Number: CV12-04775 RMW
Plaintiff,
CERTIFICATE OF SERVICE
v.
L S MCEWEN et al,
Defendant.
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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 December 3, 2012, 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.
Marlon Jessie Blacher CDC G-50077
California State Prison Los Angeles County
P O Box 8457
Lancaster, CA 93539-8457
Dated: December 3, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk
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