Stockton v. Barnes

Filing 10

ORDER TO SHOW CAUSE re ECF Nos. 6 and 9 . Signed by Hon. Ronald M. Whyte on 9/22/2015. (ofr, COURT STAFF) (Filed on 9/22/2015) (Additional attachment(s) added on 9/23/2015: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT JOHN STOCKTON, JR.,
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Petitioner,
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v.
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RON E. BARNES, Warden,
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Respondent.
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No. C 15-0171 RMW (PR)
ORDER TO SHOW CAUSE

(Docket Nos. 6, 9)

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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 has paid the filing fee.1 The court orders respondent to show cause

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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 issued a Rules Violation Report after engaging
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in a hunger strike at Pelican Bay State Prison. Petitioner has filed unsuccessful state habeas
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petitions in each level of the state courts.
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Petitioner’s motion to proceed in forma pauperis is DENIED as unnecessary. (Docket
No. 6.) Petitioner’s ex parte motion of notice of court fee is construed as a motion for an
extension of time within which to pay the filing fee. So construed, the motion is GRANTED.
(Docket No. 9.)
Order to Show Cause
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DISCUSSION
A.

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Standard of Review
This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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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.

Petitioner’s Claims
As grounds for federal habeas relief, petitioner alleges that: (1) petitioner’s due process

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rights were violated at the rules violation hearing (Claims 1-3), and (2) the California Code of

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Regulation, title 15 § 3005(a) and Operation Procedure No. 228 are vague and overbroad (Claim

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5). Liberally construed, the court orders respondent to show cause why the petition should not

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be granted.

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Petitioner’s claims that the threat of issuing the Rules Violation Report violated his right

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to free speech and was an act of retaliation are not cognizable in a habeas corpus proceeding.

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“Federal law opens two main avenues to relief on complaints related to imprisonment: a petition

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for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev.

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Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the lawfulness of confinement or to

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particulars affecting its duration are the province of habeas corpus.” Hill v. McDonough, 547

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U.S. 573, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)). “An inmate’s

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challenge to the circumstances of his confinement, however, may be brought under § 1983.” Id.

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Here, petitioner’s claims of free speech and retaliation are not allegations that petitioner is in

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custody in violation of the Constitution or laws or treaties of the United States. Thus, they are

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not cognizable in this habeas proceeding and are dismissed.

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Finally, petitioner’s claim that the state court erred in denying his petition is dismissed

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for failing to state a claim for relief. Errors in the state post-conviction review process are not
Order to Show Cause
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addressable through federal habeas corpus proceedings. See Ortiz v. Stewart, 149 F.3d 923, 939

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(9th Cir. 1998) (state judge’s refusal to appoint counsel in second post-conviction relief

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proceeding might be a violation of Arizona law, but does not constitute ground for a federal

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habeas claim because there is no constitutional right to an attorney in a state post-conviction

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proceeding); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (dismissing claim that state

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court’s delay of over a year in deciding petitioner’s state post-conviction relief petition was in

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violation of his right to due process; “a petition alleging errors in the state post-conviction

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review process is not addressable through habeas corpus proceedings”). Such errors do not

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generally represent an attack on the prisoner’s detention and therefore are not proper grounds for

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habeas relief.

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CONCLUSION
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The clerk shall serve by mail a copy of this order and the petition and all

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attachments thereto upon the respondent and the respondent’s attorney, the Attorney General of

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the State of California. The clerk shall also serve a copy of this order on the 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

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with the court and serve on petitioner a reply within fourteen days of the date any opposition is
Order to Show Cause
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filed.
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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: 9/22/2015
RONALD M. WHYTE
United States District Judge

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Order to Show Cause
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