Kent v. Grounds

Filing 3

ORDER TO SHOW CAUSE Habeas Answer due by 2/19/2013.. Signed by Judge Lucy H. Koh on 02/19/2013. (lhklc1, COURT STAFF) (Filed on 11/19/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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KENNY KENT,

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Plaintiff,
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v.
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WARDEN RANDY GROUNDS, Salinas Valley )
State Prison,
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Defendants.
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Case No.: 12-CV-05134-LHK
ORDER TO SHOW CAUSE

Petitioner Kenny Kent (“Petitioner”), a state prisoner, filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 conviction and sentence. The Court
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hereby ORDERS Respondent Warden Randy Grounds (“Respondent”) to show cause why a writ of
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habeas corpus should not be granted.
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I.

DISCUSSION
A.

Standard of Review

This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a state court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rosev.
Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing
the respondent to show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
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Case No.: 12-CV-05134-LHK
ORDER TO SHOW CAUSE

B.

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As grounds for habeas relief, Petitioner claims that: (1) Petitioner was deprived of his right

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United States District Court
For the Northern District of California

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Petitioner’s Claims

to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution because Petitioner was subject to an unduly suggestive identification procedure, and
(2) Petitioner was deprived of his right to due process of law as guaranteed by the Fifth and
Fourteenth Amendments and the right to a fair trial as guaranteed by the Sixth and Fourteenth
Amendments because the trial court refused to excuse a juror who expressed fear of Petitioner.
Liberally construed, the claims are sufficient to require a response. The Court orders Respondent
to show cause why the petition should not be granted.
II.

CONCLUSION
1.

The Clerk shall serve by mail a copy of this order, Petitioner’s Petition (ECF No. 1),

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and the Amended Petition (ECF No. 2) and all attachments thereto upon the Respondent and the

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Respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve

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a copy of this order on Petitioner.

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2.

Respondent shall file with the Court and serve on Petitioner, within ninety 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 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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Case No.: 12-CV-05134-LHK
ORDER TO SHOW CAUSE

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4.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that all

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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 of

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

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IT IS SO ORDERED.

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Dated: November 19, 2012

_________________________________
LUCY H. KOH
United States District Judge

United States District Court
For the Northern District of California

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Case No.: 12-CV-05134-LHK
ORDER TO SHOW CAUSE