The opinion of the court was delivered by: Susan Illston United States District Judge
Louis C. Daniels, 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. He paid the filing fee and filed for leave to proceed in forma pauperis.
Daniels alleges that he was convicted in 1977 in San Francisco County Superior Court of kidnapping, robbery, false imprisonment, assault with a deadly weapon, receiving stolen property and attempted robbery. He alleges that he was sentenced to a term of seven years to life in prison. His petition does not challenge his conviction but instead challenges a decision by the Board of Prison Terms ("BPT") in December 2002 not to set Daniels' term. Daniels "does not contend he is entitled to be found parole . . . suitable" but instead to have his term of years set. Petition, p. 2. He 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).
Daniels alleges that the refusal of the BPT to promptly set a term of years for him violates his federal constitutional rights to due process, equal protection and to be free from ex post facto laws. The ex post facto argument appears to stem from the fact that Daniels was originally sentenced under an indeterminate sentencing law, which was later replaced by a determinate sentencing law in California. Liberally construed, the petition presents cognizable claims for federal habeas relief.
The court notes that many of the quotes in the petition have no case citations following them. See, e.g., Petition, pp. 5, 9, 13. This is not acceptable. If a case is quoted, it should be followed by a citation to the name of the case and the particular page in the case on which the quote appears. Similarly, if a case is cited as support for a proposition (even if there is no direct quote), the particular page on which the proposition appears in the case should be identified. Citations to specific pages allow the court to determine if a case actually does stand for the proposition quoted or cited.
For the foregoing reasons,
1. The petition warrants 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 ...