United States District Court, N.D. California
ORDER TO SHOW CAUSE
RICHARD SEEBORGT, UNITED STATES DISTRICT JUDGE.
seeks federal habeas relief under 28 U.S.C. § 2254 from
his state convictions. 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.
petition states cognizable claims. Respondent shall file a
response to the petition on or before June 11,
2018, unless an extension is granted. Because
petitioner does not provide the date of his conviction, it is
unclear whether the petition is timely filed.
facts that follow are based on the petition. Petitioner
pleaded guilty in the Contra Costa County Superior Court to
two counts of committing lewd and lascivious acts on a child
(Cal. Penal Code § 288). He was sentenced to eight years
in state prison. He did not pursue any direct appeals, but he
did file for state collateral relief. After his state habeas
petitions were denied, he filed the instant federal habeas
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 (1) his
guilty plea was not knowing and voluntary; (2) defense
counsel rendered ineffective assistance; and (3) the state
courts violated the Equal Protection Clause when it denied
him relief he was owed under a new state law. When liberally
construed, Claims 1 and 2 are cognizable on federal habeas
review and shall proceed. Claim 3 does not state a cognizable
claim and therefore is DISMISSED. An allegation that a state
court misapplied state law “neither gives rise to an
equal protection claim, nor provides a basis for habeas
relief.” Little v. Crawford, 449 F.3d 1075,
1083 (9th Cir. 2006).
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
or before June 11, 2018, 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, on or before
June 11, 2018, 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 respondent ...