Laredo v. Lewis et al

Filing 8

ORDER TO SHOW CAUSE. The Clerk shall serve by certified mail a copy of this order and the petition (Docket No. 1) and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Habeas Answer due by 6/28/2013. Signed by Judge Edward J. Davila on 4/26/2013. (ecg, COURT STAFF) (Filed on 4/29/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 LEONEL LAREDO, Petitioner, 12 13 v. 14 LEWIS, et al., 15 Respondents. 16 No. C 12-05674 EJD (PR) ) ) ) ) ) ) ) ) ) ) ) ) ORDER TO SHOW CAUSE 17 18 Petitioner, a state prisoner incarcerated at the Pelican Bay State Prison, has filed a 19 pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was 20 dismissed on February 13, 2013, and then reopened on March 22, 2013, after the Court 21 granted Petitioner’s motion for reconsideration. (See Docket No. 6.) Petitioner has paid 22 the filing fee. 23 24 BACKGROUND 25 According to the petition, Petitioner is confined to the Secured Housing Unit 26 (“SHU”) at Pelican Bay State Prison and is no longer eligible to earn good time credits 27 based on a 2010 change in California law. (Pet. at 8.) 28 Petitioner filed a habeas petition in the state superior court which was dismissed on Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\05674Laredo_osc.wpd 1 1 August 5, 2011. (Pet. at 4.) It is unclear whether Petitioner filed his claims in the state 2 supreme court. DISCUSSION 3 4 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 5 6 person in custody pursuant to the judgment of a State court only on the ground that he is 7 in custody in violation of the Constitution or laws or treaties of the United States.” 28 8 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 9 10 why the writ should not be granted, unless it appears from the application that the 11 applicant or person detained is not entitled thereto.” Id. § 2243. 12 B. 13 Legal Claims Petitioner claims that his rights under the Ex Post Facto clause were violated with 14 the amendment to a state law that precludes good time credits while in the SHU. 15 Petitioner denies that he is validated gang member, and that he is entitled to earn good 16 time credits according to his plea deal with the state. Liberally construed, Petitioner’s 17 claim is cognizable under § 2254 and merits an answer from Respondent. 18 CONCLUSION 19 20 For the foregoing reasons and for good cause shown, 21 1. The Clerk shall serve by certified mail a copy of this order and the 22 petition (Docket No. 1) and all attachments thereto on Respondent and Respondent’s 23 attorney, the Attorney General of the State of California. The Clerk also shall serve a 24 copy of this order on Petitioner. 25 2. Respondent shall file with the court and serve on petitioner, within fifty-six 26 (56) days of the issuance of this order, an answer conforming in all respects to Rule 5 of 27 the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 28 should not be issued. Respondent shall file with the answer and serve on Petitioner a Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\05674Laredo_osc.wpd 2 1 copy of all portions of the state trial record that have been transcribed previously and that 2 are relevant to a determination of the issues presented by the petition. 3 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse 4 with the Court and serving it on Respondent within twenty-eight (28) days of his receipt 5 of the answer. 6 3. Respondent may file a motion to dismiss on procedural grounds in lieu of 7 an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 8 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file 9 with the Court and serve on Respondent an opposition or statement of non-opposition 10 within twenty-eight (28) days of receipt of the motion, and Respondent shall file with the 11 court and serve on Petitioner a reply within fourteen (14) days of receipt of any 12 opposition. 13 4. Petitioner is reminded that all communications with the court must be 14 served on Respondent by mailing a true copy of the document to Respondent’s counsel. 15 Petitioner must also keep the Court and all parties informed of any change 16 of address. 17 4/26/2013 DATED: ____________________ EDWARD J. DAVILA United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\05674Laredo_osc.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA LEONEL LAREDO, Case Number: CV12-05674 EJD Petitioner, CERTIFICATE OF SERVICE v. LEWIS, et al., Respondents. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 4/29/2013 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. Leonel Laredo J-81213 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 Dated: 4/29/2013 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk

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