United States District Court, N.D. California
Erik Mata, Petitioner, Pro se, Crescent City, CA.
ORDER TO SHOW CAUSE
JOSEPH C. SPERO, United States Magistrate Judge.
Petitioner seeks federal habeas relief from his gang validation. The petition for such relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Respondent shall file an answer or dispositive motion in response to the habeas petition on or before March 15, 2015, unless an extension is granted.
The petition may be untimely. Petitioner was validated in 2010, but the instant petition was not filed until 2014. Respondent is directed to consider first whether a motion to dismiss on grounds of untimeliness is the most appropriate first response to the petition. If he so concludes, he may file a motion to dismiss, though he is not required to do so.
According to the petition, in 2010, petitioner's jailors at Pelican Bay State Prison validated him as an associate of the Mexican Mafia (" EME") prison gang. In consequence, he was placed in the Secured Housing Unit at Pelican Bay.
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).
As grounds for federal habeas relief, petitioner claims that his right to due process was violated by his gang validation because the (1) evidence presented does not meet the " some evidence" requirement, and (2) validation procedures do not comport with constitutional requirements. Liberally construed, these claims are cognizable on federal habeas review.
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, on respondent and respondent's counsel, the Attorney General for 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 (90) days of the date this order is filed, 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 petitioner's cognizable claims. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that ...