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Gill v. Becerra

United States District Court, N.D. California

September 23, 2019

ARMANDO GILL, Petitioner,
v.
XAVIER BECERRA, Respondent.

          ORDER TO SHOW CAUSE DKT. NOS. 2 AND 3

          WILLIAM H. ORRICK, United States District Judge.

         INTRODUCTION

         Petitioner Armando Gill seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions and sentence. The petition for such relief states cognizable claims. Accordingly, on or before November 25, 2019, respondent shall file an answer or a dispositive motion in response to the habeas petition.

         BACKGROUND

         According to the petition, in 2013 Gill pleaded guilty in the Marin County Superior Court to charges of participating in a street gang, attempted first degree murder, making terrorist threats, and unlawful sexual intercourse. It is unclear what sentence was imposed. Gill says it was life with the possibility of parole, but CDCR documents attached to the petition state it was 17 years to life. (Pet., Dkt No. 1 at 1, 20.) Gill’s attempts to overturn his convictions in state court were unsuccessful. This federal habeas petition followed.

         DISCUSSION

         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, Gill alleges (i) his sentence was illegally enhanced; (ii) he is being denied time credits; and (iii) defense counsel rendered ineffective assistance. When liberally construed, these allegations state claims for relief.

         MOTIONS

         Gill’s motion for an evidentiary hearing is DENIED as premature. (Dkt. No. 3.) It is far too early in this litigation to decide whether an evidentiary hearing is warranted. Gill’s motion to proceed in forma pauperis is GRANTED. (Dkt. No. 2.)

         CONCLUSION

         1. The Clerk shall mail 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 mail a copy of this order on petitioner.

         2. On or before November 25, 2019, 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.

         3. If 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 ...


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