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Kumiyama v. Lewis

United States District Court, Ninth Circuit

December 30, 2013

EDWARD N. KUMIYAMA, Petitioner,
v.
G. D. LEWIS, Warden, Respondent.

ORDER TO SHOW CAUSE

JON S. TIGAR, District Judge,

Petitioner, a state prisoner incarcerated at Pelican Bay State Prison ("PBSP") and proceeding pro se, has filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. He has paid the filing fee.

DISCUSSION

A. Standard of Review

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); 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.

B. Petitioner's Claims

In his petition, petitioner alleges that he was validated as a prison gang associate of the EME prison gang while housed at California State Prison - Sacramento in 2006. In 2011, he was re-validated as an associate of the EME prison gang and was given an indeterminate sentence in the Secured Housing Unit ("SHU") at PBSP. California Penal Code § 2933.6, as amended effective January 25, 2010, precludes good time credits while in the SHU. Petitioner contends that the application of the amended version of § 2933.6 to him resulted in his minimum release date being extended from March 3, 2017 to May 14, 2018. Petitioner claims he did not receive due process at his re-validation hearing. Liberally construed, petitioner's claim are cognizable under § 2254 and merit an answer from respondent.

CONCLUSION

1. The Clerk shall mail a copy of this order and the petition, with all attachments, to the respondent and the respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this order on petitioner.

2. Respondent shall file with the Court and serve on petitioner, within ninety-one (91) 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 granted based on the claims found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the record of the gang validation proceedings 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 the date the answer is filed.

3. Respondent may file, within ninety-one (91) days, 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 the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days of the date any opposition is filed.

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 keep the Court 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). See Martinez v. Johnson , 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

IT IS SO ORDERED.


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