Solares v. Hatton

Filing 4

ORDER TO SHOW CAUSE. Signed by Magistrate Judge Howard R. Lloyd on 11/15/2017. (hrllc2S, COURT STAFF) (Filed on 11/15/2017)

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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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MARIO SOLARES,
Plaintiff,

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Case No.5:17-cv-01262-HRL
ORDER TO SHOW CAUSE

v.
SHAWN HATTON,
Defendant.

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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. The instant petition is not “so incredible or frivolous as to warrant summary

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dismissal.” Hendricks v. Vasquez, 908 F.2d 490, 492 (9th Cir. 1990). Accordingly, the court

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orders as follows:

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1. The Clerk shall serve by mail a copy of this order and the petition (Docket No. 1)
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.

United States District Court
Northern District of California

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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: November 15, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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