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Swanger v. Solis

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 20, 2005

RAYMOND PHILLIP SWANGER, PETITIONER,
v.
J.R. SOLIS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER TO SHOW CAUSE AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket no. 2)

INTRODUCTION

Petitioner Raymond Phillip Swanger, a prisoner of the State of California incarcerated at the Correctional Training Facility at Soledad, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. Venue is proper because Petitioner was convicted in Santa Cruz County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).

BACKGROUND

According to the allegations in the petition, a Santa Cruz County jury found Petitioner guilty on charges of burglary, assault with a deadly weapon, stalking, criminal threats, false imprisonment and infliction of corporal injury. On September 13, 2001, Petitioner was sentenced to six years and eight months in State prison.

The California Court of Appeal affirmed the judgment of conviction on August 12, 2004, and on September 22, 2004, the California Supreme Court denied a petition for review. The present petition was filed on October 19, 2004.

STANDARD OF REVIEW

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

CLAIMS PRESENTED

Petitioner raises the following claims, all of which he alleges have been exhausted in State court: (1) insufficient evidence supported the conviction on count number five, criminal threat; (2) instructional error with respect to the elements of the crime of stalking; (3) instructional error with respect to the allegations of criminal threat; and (4) ineffective assistance of trial counsel during closing arguments. As it does not appear from the face of the petition that Petitioner is not entitled to relief, Respondent is ordered to SHOW CAUSE why the petition should not be granted.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The Clerk of the Court shall serve by certified mail a copy of this Order and the petition and all attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at his most current address.

2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the Answer a copy of all portions of the State trial record that have been transcribed previously and that are relevant 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 the Court and serving it on Respondent within thirty (30) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's Answer.

3. Respondent may file a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within thirty (30) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.

4. Petitioner is reminded that all communications with the Court must be served on Respondent by mailing a true copy of the document to Respondent's counsel.

5. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.

IT IS SO ORDERED.

20050520

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