IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
July 20, 2005
GLENN ALLEN DUNN, PETITIONER,
CHERYL K. PLILER, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER TO SHOW CAUSE, GRANTING IN FORMA PAUPERIS STATUS AND DENYING MOTION FOR WRIT OF MANDATE (Docket nos. 2, 5)
Petitioner Glen Allen Dunn, a State prisoner incarcerated at the California State Prison-Sacramento, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application for in forma pauperis status. Venue is proper because Petitioner was convicted in Contra Costa County, which is located in this judicial district. See 28 U.S.C. § 2241(d).
According to the allegations in the petition and the documents attached thereto, on August 2, 1995, an information was filed in Contra Costa County Superior Court charging Petitioner with three counts of bank robbery and with sentence enhancement allegations of two prior felony convictions and two prior prison terms. At a court trial held on November 17, 1995, Petitioner was found mentally incompetent to stand trial and was committed to Atascadero State Hospital, to remain hospitalized until restored to the mental capacity to stand trial. Criminal proceedings were reinstated on May 21, 1996. On June 27, 1996, Petitioner entered the additional plea of not guilty by reason of insanity.
On November 21, 1996, a jury found Petitioner guilty of all charges. On the following day at the conclusion of the insanity phase of the trial the jury found that Petitioner was legally sane at the time of the charged crimes. On March 3, 1997, the trial court denied Petitioner's motion for a new trial and sentenced him to eighty-seven years to life in State prison.
Petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment of conviction on March 30, 1999. A petition for review was filed in the California Supreme Court and denied on April 13, 1999. Petitioner filed a State petition for a writ of habeas corpus in the State superior court, which was denied in a reasoned opinion issued on May 20, 2003. A State habeas petition filed in the California Supreme Court was denied on December 12, 2003, without citation or comment, and another State habeas petition filed in the California Supreme Court was denied on November 17, 2004, with a summary citation to In re Robbins, 18 Cal. 4th 770, 780 (1998).
The present federal habeas corpus petition was filed on December 28, 2004. Petitioner alleges that he has exhausted his State remedies with respect to all claims raised in this petition.
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.
As it does not appear from the face of the petition that Petitioner is not entitled to relief, Respondent shall SHOW CAUSE why the petition should not be granted.
For the foregoing reasons and for good cause shown,
1. Leave to proceed in forma pauperis is GRANTED. (Docket no. 2.)
2. The motion for a writ of mandate directing the Court to address the petition is DENIED as moot. (Docket no. 5.)
3. 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.
4. 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.
5. 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.
6. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
7. 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.
8. 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.
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