Hicks v. Hatton

Filing 4

ORDER TO SHOW CAUSE. The Clerk shall serve by mail a copy of this order and the petition and all attachments thereto on Respondent and Respondents attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Respondent's Habeas Answer or Dispositive Motion due by 7/31/2017. Signed by Judge Edward J. Davila on 5/30/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 5/30/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 GARY LEE HICKS, United States District Court Northern District of California 11 12 Case No. 17-00972 EJD (PR) Petitioner, ORDER TO SHOW CAUSE v. 13 14 S. HATTON, Warden, 15 Respondent. 16 17 18 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the 20 filing fee. 21 22 BACKGROUND According to the petition, Petitioner was found guilty by a jury in Monterey County 23 Superior Court of second degree murder. (Pet. Attach. at 2.) Petitioner was sentenced on 24 September 15, 1983, to a term of 15 years-to-life. (Pet. at 1.) 25 Petitioner appealed his conviction to the state appellate court, and then to the state 26 high court which denied review in 1985. (Pet. at 3.) Petitioner filed state habeas petitions, 27 which were also denied. (Id. at 3-4.) 28 Petitioner filed a petition in the “Northern District Court of Appeals,” which was 1 also denied.1 (Pet. at 4.) Petitioner filed the instant petition on February 24, 2017. 2 3 DISCUSSION 4 5 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a person 6 7 in custody pursuant to the judgment of a State court only on the ground that he is in 8 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 9 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 10 United States District Court Northern District of California 11 why the writ should not be granted, unless it appears from the application that the applicant 12 or person detained is not entitled thereto.” Id. § 2243. 13 B. Legal Claims Petitioner asserts new evidence supports the petition, specifically: (1) prosecutorial 14 15 misconduct by the use of an informant’s false testimony; and (2) the trial court erred in 16 admitting the “electrophoresis” evidence because the process was not reliable and the 17 defense was disallowed an independent test because the prosecution consumed all 18 available sample. (Pet. Attach. at 3-7.) Liberally construed, these claims are cognizable 19 under § 2254 and merit an answer from Respondent. 20 CONCLUSION 21 22 For the foregoing reasons and for good cause shown, 23 1. The Clerk shall serve by mail a copy of this order and the petition and all 24 1 27 It is possible that Petitioner filed a previous federal habeas petition, which would make the instant action subject to dismissal as a second or successive petition, see 28 U.S.C. § 2244(b)(1), but this fact is not readily apparent from the petition or the attachments thereto. Accordingly, Respondent may respond to the appropriateness of such a dismissal in a motion to dismiss. 28 2 25 26 1 attachments thereto on Respondent and Respondent’s attorney, the Attorney General of the 2 State of California. The Clerk also shall serve a copy of this order on Petitioner. 2. 3 Respondent shall file with the court and serve on Petitioner, within sixty (60) 4 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 5 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 6 not be issued. Respondent shall file with the answer and serve on Petitioner a copy of all 7 portions of the state trial record that have been transcribed previously and that are relevant 8 to a determination of the issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 9 the Court and serving it on Respondent within thirty (30) days of his receipt of the 11 United States District Court Northern District of California 10 answer. 3. 12 Respondent may file a motion to dismiss on procedural grounds in lieu of an 13 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 14 Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court 15 and serve on Respondent an opposition or statement of non-opposition within twenty- 16 eight (28) days of receipt of the motion, and Respondent shall file with the court and serve 17 on Petitioner a reply within fourteen (14) days of receipt of any opposition. 4. 18 It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded 19 that all communications with the Court must be served on Respondent by mailing a true 20 copy of the document to Respondent’s counsel. Petitioner must keep the Court and all 21 parties informed of any change of address by filing a separate paper captioned “Notice of 22 Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure 23 to do so may result in the dismissal of this action for failure to prosecute pursuant to 24 Federal Rule of Civil Procedure 41(b). 5. 25 Upon a showing of good cause, requests for a reasonable extension of time 26 will be granted provided they are filed on or before the deadline they seek to extend. 27 /// 28 3 1 2 IT IS SO ORDERED. 5/30/2017 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 3 4 5 6 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 Order to Show Cause PRO-SE\EJD\HC.17\00972Hicks_osc 26 27 28 4

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?