United States District Court, N.D. California
ORDER TO SHOW CAUSE
C. SPERO Chief Magistrate Judge.
seeks federal habeas relief under 28 U.S.C. § 2254 from
his state convictions. The petition for such relief is here for
review under 28 U.S.C. § 2243 and Rule 4 of the Rules
Governing Section 2254 Cases.
shall file a response to the petition on or before July 17,
2017, unless an extension is granted. It appears that the
claims are unexhausted. If respondent concludes that they are
unexhausted, he may file a motion to dismiss on such grounds,
though he is not required to do so.
to the petition in 2015 a San Francisco County Superior Court
jury convicted petitioner of rape, unlawful sexual
intercourse with a minor, pimping a minor, and pandering with
a minor. He received a sentence of 8 years and 8 months in
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).
grounds for federal habeas relief, petitioner claims that (1)
the police violated his Fifth Amendment rights; (2) defense
counsel rendered ineffective assistance; (3) the prosecutor
committed misconduct; and (4) his sentence is
unconstitutional. When liberally construed, these claims
appear to be cognizable.
Clerk shall serve a copy of this order, the petition and all
attachments thereto, and a Magistrate Judge jurisdiction
consent or declination to consent form 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.
or before July 17, 2017, respondent shall file with the Court
and serve on petitioner 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 previously have been
transcribed and that are relevant to a determination of the
issues presented by the petition.
petitioner wishes to respond to the answer, he shall do so by
filing a traverse with the Court and serving it on
respondent's counsel within thirty (30) days of the date
the answer is filed.
lieu of an answer, respondent may file, within sixty (60)
days of the date this order is filed, a motion to dismiss on
procedural grounds, 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 thirty (30) days of the date the
motion is filed, and ...