Stockton v. Lewis

Filing 6

ORDER TO SHOW CAUSE Habeas Answer due by 4/21/2014. Traverse due by 5/21/2014. Signed by Judge Ronald M. Whyte on 2/18/14. (jgS, COURT STAFF) (Filed on 2/18/2014)

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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 ROBERT JOHN STOCKTON, JR., 11 Petitioner, 12 vs. 13 14 GREG D. LEWIS, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 13-3978 RMW (PR) ORDER TO SHOW CAUSE 16 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 17 18 28 U.S.C. § 2254. Petitioner has paid the filing fee. The court orders respondent to show cause 19 why a writ of habeas corpus should not be granted. 20 21 22 DISCUSSION A. Standard of Review This court may entertain a petition for writ of habeas corpus “in behalf of a person in 23 custody pursuant to the judgment of a state court only on the ground that he is in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose 25 v. Hodges, 423 U.S. 19, 21 (1975). 26 A district court shall “award the writ or issue an order directing the respondent to show 27 cause why the writ should not be granted, unless it appears from the application that the 28 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Order to Show Cause G:\PRO-SE\RMW\HC.13\Stockton978osc.wpd 1 B. 2 Petitioner’s Claims In his petition, petitioner alleges that, in 2011, he appeared before the Institutional 3 Classification Committee (“ICC”) for a periodic review of petitioner’s segregation status in the 4 SHU after being validated as a gang member in 2009. As grounds for federal habeas relief, 5 petitioner claims that: (1) he did not receive due process at the ICC hearing, and (2) his detention 6 in the SHU, and specifically, his being labeled as “active” in gang activity was not supported by 7 “some evidence”. Liberally construed, the court orders respondent to show cause why the 8 petition should not be granted. 9 CONCLUSION 10 1. The clerk shall serve by mail a copy of this order and the petition (docket no. 1) 11 and all attachments thereto upon the respondent and the respondent’s attorney, the Attorney 12 General of the State of California. The clerk shall also serve a copy of this order on the 13 petitioner. 14 2. Respondent shall file with the court and serve on petitioner, within sixty days of 15 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing 16 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 17 Respondent shall file with the answer and serve on petitioner a copy of all portions of the 18 underlying state criminal record that have been transcribed previously and that are relevant to a 19 determination of the issues presented by the petition. 20 21 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. 22 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 23 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 24 2254 Cases within sixty days of the date this order is filed. If respondent files such a motion, 25 petitioner shall file with the court and serve on respondent an opposition or statement of non- 26 opposition within twenty-eight days of the date the motion is filed, and respondent shall file 27 with the court and serve on petitioner a reply within fourteen days of the date any opposition is 28 filed. Order to Show Cause G:\PRO-SE\RMW\HC.13\Stockton978osc.wpd 2 1 4. It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that 2 all communications with the court must be served on respondent by mailing a true copy of the 3 document to respondent’s counsel. Petitioner must keep the court and all parties informed of any 4 change of address by filing a separate paper captioned “Notice of Change of Address.” He must 5 comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal 6 of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 7 8 IT IS SO ORDERED. DATED: RONALD M. WHYTE United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order to Show Cause G:\PRO-SE\RMW\HC.13\Stockton978osc.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROBERT JOHN STOCKTON JR, Case Number: CV13-03978 RMW Plaintiff, CERTIFICATE OF SERVICE v. GREG D LEWIS et al, 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 February 18, 2014, 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. Robert John Stockton J-80992 C11-102, Security Housing Unit Pelican Bay State Prison, SHU P.O. Box 7500 Crescent City, CA 95532 Dated: February 18, 2014 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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