James D Fox v. Kim Holland
Filing
6
ORDER TO SHOW CAUSE. Respondent shall file a consent or declination to magistrate judge within 14 days of this order. Signed by Judge Nathanael Cousins on 10/28/2015. (Attachments: # 1 Consent/Declination)(lmh, COURT STAFF) (Filed on 10/28/2015)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
10
JAMES D. FOX,
Plaintiff.
Case No. 15-cv-02134-NC
11
United States District Court
Northern District of California
v.
ORDER TO SHOW CAUSE
12
13
KIM HOLLAND,
Defendant.
14
15
Petitioner James Fox, a state prisoner incarcerated at California Correctional
16
17
Institution in Tehachapi, California, has filed a petition for a writ of habeas corpus
18
pursuant to 28 U.S.C. § 2254.
19
I.
BACKGROUND
Petitioner pled nolo contendere in the Superior Court of the State of California. On
20
21
or about August 3, 2010, he was sentenced to 6 years in state prison. Petitioner
22
unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme
23
Court of California, which on March 25, 2015, denied review of a petition allegedly
24
raising the same claims raised here.
25
26
27
28
II.
DISCUSSION
A.
Legal Standard
This court may entertain a petition for writ of habeas corpus “in behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in
1
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
2
§ 2254(a). It shall “award the writ or issue an order directing the respondent to show cause
3
why the writ should not be granted, unless it appears from the application that the applicant
4
or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is
5
appropriate only where the allegations in the petition are vague or conclusory, palpably
6
incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491
7
(9th Cir. 1990).
8
B.
9
Petitioner seeks federal habeas corpus relief by raising the following claims (1)
Petitioner’s Legal Claims
ineffective assistance of counsel, and (2) the felony charges were time barred. Liberally
11
United States District Court
Northern District of California
10
construed, the claims appear colorable under 28 U.S.C. § 2254 and merit an answer from
12
respondent.
13
III.
14
15
CONCLUSION
For the foregoing reasons and for good cause shown:
1. The clerk shall serve by certified mail a copy of this order and the
16
petition and all attachments thereto upon respondent. The clerk shall also
17
serve a copy of this order on petitioner.
18
2. Respondent shall file with the court and serve on petitioner, within 60
19
days of the date of this order, an answer showing why a writ of habeas
20
corpus should not be issued (or -an answer conforming in all respects to
21
22
23
24
Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a
writ of habeas corpus should not be issued). Respondent shall file with
the answer and serve on petitioner a copy of all portions of the
administrative record that are relevant to a determination of the issues
presented by the petition.
25
3. If the petitioner wishes to respond to the answer, he shall do so by filing a
26
27
traverse with the court and serving it on respondent within 30 days of his
receipt of the answer.
28
2
1
2
3
4
5
6
4. Respondent shall file a consent or declination to magistrate judge
jurisdiction within 14 days of this order.
IT IS SO ORDERED.
Dated: August 28, 2015
_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
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?