Sullivan v. Muniz

Filing 5

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 CARL OTIS SULLIVAN, Plaintiff, 13 14 15 16 Case No.5:17-cv-05174-HRL ORDER TO SHOW CAUSE v. WILLIAM MUNIZ, Defendant. 17 18 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 21 district court considering an application for a writ of habeas corpus shall “award the writ or issue 22 an order directing the respondent to show cause why the writ should not be granted, unless it 23 appears from the application that the applicant or person detained is not entitled thereto.” 28 24 U.S.C. § 2243. The instant petition is not “so incredible or frivolous as to warrant summary 25 dismissal.” Hendricks v. Vasquez, 908 F.2d 490, 492 (9th Cir. 1990). Accordingly, the court 26 orders as follows: 27 28 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, 1 on Respondent and Respondent’s attorney, the Attorney General of the State of 2 California. 3 2. Respondent shall file with the court and serve on Petitioner, within ninety (90) 4 days of the issuance of this order, an answer conforming in all respects to Rule 5 of 5 the Rules Governing Section 2254 Cases, showing cause why a writ of habeas 6 corpus should not be issued. Respondent shall file with the answer and serve on 7 Petitioner a copy of all portions of the state trial record that have been transcribed 8 previously and that are relevant to a determination of the issues presented by the 9 petition. At that time, Respondent shall also return the magistrate judge 10 jurisdiction consent form. United States District Court Northern District of California 11 3. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse (a 12 reply) with the Court and serving it on Respondent within thirty (30) days of the 13 date the answer is filed. 14 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 15 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 16 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall 17 file with the Court and serve on Respondent an opposition or statement of non- 18 opposition within twenty-eight (28) days of receipt of the motion, and Respondent 19 shall file with the court and serve on Petitioner a reply within fourteen (14) days of 20 receipt of any opposition. 21 22 SO ORDERED. Dated: November 15, 2017 23 24 HOWARD R. LLOYD United States Magistrate Judge 25 26 27 28 2

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