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Davis v. Spearman

United States District Court, N.D. California

May 9, 2018

CHAROME DAVIS, Petitioner,
v.
M.E. SPEARMAN, Warden, Respondent.

          ORDER TO SHOW CAUSE

          NATHANAEL M. COUSINS United States Magistrate Judge

         Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1]Petitioner has paid the filing fee. For the reasons that follow, the court orders Respondent to show cause why the petition should not be granted.

         BACKGROUND

         According 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.

         DISCUSSION

         A. Standard of Review

         This 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).

         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. 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)).

         B. Petitioner's Claims

         Petitioner 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 these claims.

         CONCLUSION

         For the foregoing reasons:

         1. The 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.

         2. 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 ...


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