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Laredo v. Lewis

United States District Court, Ninth Circuit

April 29, 2013

LEONEL LAREDO, Petitioner,
v.
LEWIS, et al., Respondents.

ORDER TO SHOW CAUSE

EDWARD J. DAVILA, District Judge.

Petitioner, a state prisoner incarcerated at the Pelican Bay State Prison, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was dismissed on February 13, 2013, and then reopened on March 22, 2013, after the Court granted Petitioner's motion for reconsideration. (See Docket No. 6.) Petitioner has paid the filing fee.

BACKGROUND

According to the petition, Petitioner is confined to the Secured Housing Unit ("SHU") at Pelican Bay State Prison and is no longer eligible to earn good time credits based on a 2010 change in California law. (Pet. at 8.)

Petitioner filed a habeas petition in the state superior court which was dismissed on August 5, 2011. (Pet. at 4.) It is unclear whether Petitioner filed his claims in the state supreme court.

DISCUSSION

A. 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).

It 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." Id . § 2243.

B. Legal Claims

Petitioner claims that his rights under the Ex Post Facto clause were violated with the amendment to a state law that precludes good time credits while in the SHU. Petitioner denies that he is validated gang member, and that he is entitled to earn good time credits according to his plea deal with the state. Liberally construed, Petitioner's claim is cognizable under § 2254 and merits an answer from Respondent.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The Clerk shall serve by certified mail a copy of this order and the petition (Docket No. 1) and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

2. Respondent shall file with the court and serve on petitioner, within fifty-six (56) 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 and serve on Petitioner 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 twenty-eight (28) days of his receipt of the 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 within twenty-eight (28) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fourteen (14) 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. Petitioner must also keep the Court and all parties informed of any change of address.


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