Torres v. Kernan

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 20-cv-03159-PJH

8 Petitioner, ORDER FOR RESPONDENT TO 9 v. SHOW CAUSE

10 SCOTT KERNAN, Respondent. 11

12 13 Petitioner, a former state prisoner, filed a pro se writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. The petition was stayed so petitioner could exhaust further claims. 15 The stay has been lifted and petitioner has filed an amended petition. 16 DISCUSSION 17 STANDARD OF REVIEW 18 This court may entertain a petition for writ of habeas corpus “in behalf of a person 19 in custody pursuant to the judgment of a State court only on the ground that he is in 20 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 21 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 22 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 23 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 24 pursuant to a judgment of a state court must “specify all the grounds for relief available to 25 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 26 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 27 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 1 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 2 1970)). 3 LEGAL CLAIMS 4 As grounds for federal habeas relief, petitioner asserts that: (1) his plea agreement 5 was violated; (2) he was improperly resentenced; and (3) restitution was improperly 6 instituted at his resentencing. Liberally construed, these claims are sufficient to require a 7 response. 8 CONCLUSION 9 1. The clerk shall serve by electronic mail a copy of this order on the Attorney 10 General of the State of California at SFAWTParalegals@doj.ca.gov. The clerk also 11 shall serve a copy of this order on petitioner by regular mail. Respondent can view the 12 petition on the electronic docket (Docket No. 14). 13 2. Respondent shall file with the court and serve on petitioner, within sixty (60) 14 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 15 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 16 should not be granted. Respondent shall file with the answer and serve on petitioner a 17 copy of all portions of the state trial record that have been transcribed previously and that 18 are relevant to a determination of the issues presented by the petition. 19 If petitioner wishes to respond to the answer, he shall do so by filing a traverse 20 with the court and serving it on respondent within twenty-eight (28) days of his receipt of 21 the answer. 22 3. Respondent may file a motion to dismiss on procedural grounds in lieu of 23 an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 24 Governing Section 2254 Cases. If respondent files such a motion, it is due sixty (60) 25 days from the date this order is entered. If a motion is filed, petitioner shall file with the 26 Court and serve on respondent an opposition or statement of non-opposition within 27 twenty-eight (28) days of receipt of the motion, and respondent shall file with the court 1 4. Petitioner is reminded that all communications with the court must be 2 served on respondent by mailing a true copy of the document to respondent’s counsel. 3 Petitioner must keep the court informed of any change of address and must comply with 4 the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 5 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See 6 Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas 7 cases). 8 IT IS SO ORDERED. 9 Dated: July 7, 2021 10 11 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27