Royal v. Spearman

Filing 5

ORDER Granting Leave to Proceed In Forma Pauperis; ORDER TO SHOW CAUSE. Habeas Answer due by 12/23/2013. Signed by Judge Ronald M. Whyte on 10/22/13. (jgS, COURT STAFF) (Filed on 10/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARTIN DEMMENT ROYAL,
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Petitioner,
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vs.
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M.E. SPEARMAN, Warden,

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Respondent.

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No. C 13-2510 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 for leave to proceed in forma pauperis is GRANTED.

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The 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 Napa County Superior Court of

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charges of sexual misconduct. Petitioner unsuccessfully appealed his convictions to the

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California Court of Appeal and the California Supreme Court. Petitioner then filed a state

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habeas petition in the California Supreme Court, which was denied on May 1, 2013. Petitioner

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filed the underlying petition on June 4, 2013.

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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

Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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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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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 trial counsel rendered

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ineffective assistance because he failed to advised petitioner about any plea offer. Liberally

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construed, the court orders respondent to show cause why the petition should not be granted.

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CONCLUSION
1.

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 the

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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

MARTIN DEMMENT ROYAL,

Case Number: CV13-02510 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
M E SPEARMAN, WARDEN,
Defendant.

/

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 October 23, 2013, 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.

Martin Demment Royal V65542
Rainer B-334U
CTF
PO Box 705
Soledad, CA 93960-0705
Dated: October 23, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk