McFarland v. Hill

Filing 6

ORDER TO SHOW CAUSE; GRANTING 2 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. The Clerk shall serve by certified mail a copy of this order and the petition 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 4/1/2013. Signed by Judge Edward J. Davila on 1/28/2013. (ecg, COURT STAFF) (Filed on 1/29/2013)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 GREGORY A. McFARLAND, Petitioner, 12 13 vs. 14 RICK HILL, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. C 13-00147 EJD (PR) ORDER TO SHOW CAUSE; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2) 17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has 20 filed a motion for leave to proceed in forma pauperis. (Docket No. 2.) 21 BACKGROUND 22 23 According to the petition, Petitioner was found guilty of assault with a firearm 24 and residential burglary after a jury trial in San Mateo County. (Pet. at 1.) Petitioner 25 was sentenced to 10 years and four months in prison. (Id.) 26 27 28 Petitioner appealed his conviction, and the state appellate court affirmed. (Id. at 2.) The state high court denied review. (Id.) Petitioner filed the instant federal habeas petition on December 17, 2012. Order to Show Cause; Granting IFP 00147McFarland_osc&ifp.wpd DISCUSSION 1 2 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 3 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 7 8 why the writ should not be granted, unless it appears from the application that the 9 applicant or person detained is not entitled thereto.” Id. § 2243. 11 For the Northern District of California United States District Court 10 B. Legal Claims Petitioner claims the following ground for federal habeas relief: (1) his right to a 12 trial by an impartial jury was violated when the trial court failed to investigate jury 13 misconduct. Liberally construed, his claim is cognizable under § 2254 and merits an 14 answer from Respondent. 15 CONCLUSION 16 17 For the foregoing reasons and for good cause shown, 18 1. 19 20 Petitioner’s motion for leave to proceed in forma pauperis, (Docket No. 2), is GRANTED. 2. The Clerk shall serve by certified mail a copy of this order and the 21 petition and all attachments thereto on Respondent and Respondent’s attorney, the 22 Attorney General of the State of California. The Clerk also shall serve a copy of this 23 order on Petitioner. 24 3. Respondent shall file with the court and serve on petitioner, within sixty 25 (60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of 26 the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 27 should not be issued. Respondent shall file with the answer and serve on Petitioner a 28 copy of all portions of the state trial record that have been transcribed previously and Order to Show Cause; Granting IFP 00147McFarland_osc&ifp.wpd 2 1 2 that are relevant to a determination of the issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse 3 with the Court and serving it on Respondent within thirty (30) days of his receipt of the 4 answer. 5 4. Respondent may file a motion to dismiss on procedural grounds in lieu of 6 an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 7 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file 8 with the Court and serve on Respondent an opposition or statement of non-opposition 9 within thirty (30) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fifteen (15) days of receipt of any 11 For the Northern District of California United States District Court 10 opposition. 12 5. Petitioner is reminded that all communications with the court must be 13 served on Respondent by mailing a true copy of the document to Respondent’s counsel. 14 Petitioner must also keep the Court and all parties informed of any change 15 of address. 16 This order terminates Docket No. 2. 17 18 DATED: 1/28/2013 EDWARD J. DAVILA United States District Judge 19 20 21 22 23 24 25 26 27 28 Order to Show Cause; Granting IFP 00147McFarland_osc&ifp.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GREGORY ANTHONY MCFARLAND, Case Number CV 13-00147 EJD (PR) Petitioner, CERTIFICATE OF SERVICE v. RICK HILL, Respondent. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 1/29/2013 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) inter-office delivery receptacle located in the Clerk's office. Gregory Anthony McFarland AI-1206 Folsom State Prison P.O. Box 950 Folsom, CA 95763 1/29/2013 DATED: ________________________ Richard W. Wieking, Clerk /s/By: Elizabeth Garcia, Deputy Clerk Order to Show Cause; Granting IFP 00147McFarland_osc&ifp.wpd 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?