United States District Court, N.D. California
ORDER TO SHOW CAUSE
NATHANAEL M. COUSINS United States Magistrate Judge
a state prisoner proceeding pro se, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.Petitioner has
paid the filing fee. For the reasons that follow, the court
orders Respondent to show cause why the petition should not
to the petition, Petitioner was sentenced to a term of 21
years after pleading no contest to voluntary manslaughter
with the use of a firearm in Alameda County Superior Court.
Petitioner did not file a direct appeal. Petitioner did,
however, filed unsuccessful state habeas petitions in the
Superior Court, the California Court of Appeals, and the
California Supreme Court. Petitioner filed the instant
federal petition on March 15, 2018.
Standard of Review
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);
Rose v. Hodges, 423 U.S. 19, 21 (1975).
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. 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) (quoting Blackledge v.
Allison, 431 U.S. 63, 75-76 (1977)).
claims that: (1) Petitioner's sentence violates
Cunningham v. California, 549 U.S. 270 (2007); (2)
Petitioner's sentence was unauthorized; and (3) counsel
rendered ineffective assistance. The court orders Respondent
to show cause why the petition should not be granted as to
Clerk of the Court is directed to serve a Magistrate Judge
jurisdiction consent form, a copy of this Order, and the
petition, and all attachments thereto, on Respondent and
Respondent's attorney, the Attorney General of the State
of California. Respondent shall file his Magistrate Judge
jurisdiction consent form no later than thirty (30)
days from the filing date of this Order.
Respondent is directed to file with the court and serve on
Petitioner, within sixty (60) 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 must file
with the answer and serve on Petitioner a copy of all
portions of the state trial record ...