Opinion
No. C 14-5277 RMW (PR)
06-02-2015
STEVEN R. CLARK, Petitioner, v. ERIC ARNOLD, Warden, Respondent.
ORDER RE-OPENING CASE; ORDER TO SHOW CAUSE
On December 2, 2014, petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus challenging a criminal conviction and judgment pursuant to 28 U.S.C. § 2254. On February 10, 2015, the court dismissed this action for failure to timely file a completed application to proceed in forma pauperis or pay the filing fee. On February 11, 2015, petitioner filed a $5.00 filing fee. Accordingly, the court sua sponte re-opens this action and orders respondent to show cause why a writ of habeas corpus should not be granted.
DISCUSSION
A. Standard of Review
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); 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. B. Petitioner's Claim
As grounds for federal habeas relief petitioner raises the following claim: because petitioner was sentenced to an Indeterminate Sentencing Law term, petitioner's sentence violates ex post facto. Liberally construed, petitioner's allegation is sufficient to require a response. The court orders respondent to show cause why the petition should not be granted.
CONCLUSION
1. The clerk shall RE-OPEN the case.
2. The clerk shall serve by mail a copy of this order and the petition (docket no. 1) and all attachments thereto upon the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on the petitioner.
3. Respondent shall file with the court and serve on petitioner, within ninety days of the date this order is filed, 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. Respondent shall file with the answer and serve on petitioner a copy of all portions of the underlying state criminal record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of the date the answer is filed.
4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases within ninety days of the date this order is filed. 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 days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within fifteen days of the date any opposition is filed.
5. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court and all parties informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED. DATED: 6/2/15
/s/_________
RONALD M. WHYTE
United States District Judge
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 2, 2015, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Steven R. Clark E16968
CSP Solano, A6-113-Low
P.O. box 4000
Vacaville, CA 95696-4000
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk