UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 5, 2005
ROBERT GONZALES, PETITIONER,
JILL BROWN, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER TO SHOW CAUSE
Robert Gonzales, an inmate at San Quentin State Prison, 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.
Gonzales was convicted in the Santa Clara County Superior Court of robbery and was sentenced to a term of two years in prison on November 28, 2000. He apparently did not appeal the conviction. He did, however, file petitions for writ of habeas corpus in the state courts, including in the California Supreme Court. Gonzales then filed 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).
The petition contains a single claim: Gonzales alleges that he received ineffective assistance of counsel in that his attorney failed to file a motion to suppress his wife's statements. Liberally construed, the claim is cognizable in a federal habeas action and warrants a response from respondent.
For the foregoing reasons,
1. The petition states a cognizable claim for habeas relief and warrants a response.
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. Respondents must file with the answer a copy of all portions of the court proceedings 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 14, 2005.
5. Petitioner has not paid the $5.00 filing fee or submitted an application to proceed in forma pauperis. This action will be dismissed if petitioner does not pay the filing fee or submit a completed in forma pauperis application by August 19, 2005.
IT IS SO ORDERED.
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