Alger v. MacDonald et al

Filing 6

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 4/27/2016. Signed by Magistrate Judge Howard R. Lloyd on 1/28/2016. (hrllc2, COURT STAFF) (Filed on 1/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JARED ALGER,

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Case No. 5:15-cv-04568-HRL

Plaintiff,

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ORDER TO SHOW CAUSE

v.

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JIM MACDONALD,

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Defendant.

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Petitioner Jared Alger, a California prisoner, seeks federal habeas relief under 28 U.S.C. §

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2254, challenging his state conviction. According to the petition, a jury in Contra Costa County

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found Alger guilty of manslaughter, personal use of a firearm, false imprisonment, and assault.1
The petition further states: Alger appealed to the California Court of Appeal, which

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reversed his conviction. The California Supreme Court subsequently vacated that decision and

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remanded for reconsideration. On remand, Alger’s conviction was upheld. Alger says that the

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California Supreme Court denied his petition for review on December 11, 2013, as did the U.S.

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Supreme Court on October 6, 2014.
Petitioner has paid the filing fee and has consented to the jurisdiction of a United States

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Magistrate Judge (Dkt. 5). 28 U.S.C. § 636; Fed. R. Civ. P. 73.

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According to the petition, the sentence for assault was stayed.

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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). A

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district court considering an application for a writ of habeas corpus shall “award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243.

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Petitioner claims the following grounds for federal habeas relief: (1) he was wrongfully

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denied an opportunity to cross-examine the coroner who performed the autopsy; and (2) his right
to counsel was violated because his retained counsel was not permitted to substitute in place of the

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United States District Court
Northern District of California

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public defender. Liberally construed, these claims are cognizable under § 2254 and merit an

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answer from Respondent.

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For the foregoing reasons and for good cause shown:
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, as well as a magistrate judge jurisdiction consent form,

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on Respondent and Respondent’s attorney, the Attorney General of the State of

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California.

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2. Respondent shall file with the court and serve on Petitioner, within ninety (90)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas

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corpus should not be issued. Respondent shall file with the answer and serve on

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Petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the

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petition. At that time, Respondent shall also return the magistrate judge

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jurisdiction consent form.

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3. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse (a

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reply) with the Court and serving it on Respondent within thirty (30) days of the

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date the answer is filed.
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4. 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

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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall

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file with the Court and serve on Respondent an opposition or statement of non-

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opposition within twenty-eight (28) days of receipt of the motion, and Respondent

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shall file with the court and serve on Petitioner a reply within fourteen (14) days of

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receipt of any opposition.

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SO ORDERED.
Dated: January 28, 2016

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United States District Court
Northern District of California

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HOWARD R. LLOYD
United States Magistrate Judge

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