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)

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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

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