UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 5, 2005
DENNIS CHAN, PETITIONER,
A. KANE, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER TO SHOW CAUSE
Dennis Chan, an inmate at the Correctional Training Facility in Soledad, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Chan was convicted in 1987 in San Francisco County Superior Court of kidnapping for robbery and sentenced to a term of life in prison with the possibility of parole. His petition does not challenge his conviction but instead challenges a decision by the Board of Prison Terms ("BPT") at a December 2003 hearing that found him not suitable for parole. Chan alleges that he filed habeas petitions in state courts, including the California Supreme Court, before filing this action.
This court may entertain a petition for 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). A district court considering an application for a writ of habeas corpus 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. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Chan alleges that the BPT's decision was not supported by some evidence and that the BPT has breached his plea agreement by denying him parole. Liberally construed, the allegations state cognizable claims for due process violations. See Board of Pardons v. Allen, 482 U.S. 369 (1987); Morales. v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995) (due process requires that "some evidence" must support the parole authority's decision); Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003).
For the foregoing reasons,
1. The due process claims in the petition warrant a response from respondent.
2. The clerk shall serve by certified mail a copy of this order, 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.
3. Respondent must file and serve upon petitioner, on or before September 16, 2005, 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 must file with the answer a copy of all portions of the parole hearing record that have been previously transcribed and that are relevant to a determination of the issues presented by the petition.
4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent on or before October 21, 2005.
IT IS SO ORDERED.
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