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Clemmons v. Beard

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Aug 15, 2014
No. C 14-02392 HRL (PR) (N.D. Cal. Aug. 15, 2014)

Opinion

No. C 14-02392 HRL (PR)

08-15-2014

BRUCE JOSEPH CLEMMONS, Petitioner, v. JEFFREY BEARD, Respondent.


ORDER TO SHOW CAUSE

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

BACKGROUND

According to the petition, Petitioner pleaded nolo contendere to rape of an incompetent person, along with a prior strike in Monterey County Superior Court. (Pet. 2-3.) Petitioner was sentenced to 12 years in state prison on December 31, 2009. (Id. at 2.) Petitioner did not appeal his conviction.

Petitioner filed petitions for writ of habeas corpus in the state courts, and the state high court denied review on March 19, 2014.

Petitioner filed the instant federal habeas petition on May 23, 2014.

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).

It 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." Id. § 2243. B. Legal Claims

Petitioner claims that he received ineffective assistance of counsel in accepting the plea agreement because counsel did not inform him of his right to court-appointed experts to test the victim's ability to give consent. Liberally construed, this claim is cognizable under § 2254 and merits an answer from Respondent.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The Clerk shall serve by certified mail a copy of this order and the petition (Docket No. 1) and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

2. Respondent shall 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 issued. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state trial 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 riling a traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the answer.

3. 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. 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 receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.

4. 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 also keep the Court and all parties informed of any change of address. Dated: 8/15/2014

/s/_________

HOWARD R. LLOYD

United States Magistrate 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 8/15/2014, 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. Bruce Joseph Clemmons AC 1963
La Palma Correctional Center
5501 N. La Palma Road
Eloy, AZ 85131-9641

/s/

Richard W. Wieking, Clerk


Summaries of

Clemmons v. Beard

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Aug 15, 2014
No. C 14-02392 HRL (PR) (N.D. Cal. Aug. 15, 2014)
Case details for

Clemmons v. Beard

Case Details

Full title:BRUCE JOSEPH CLEMMONS, Petitioner, v. JEFFREY BEARD, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Aug 15, 2014

Citations

No. C 14-02392 HRL (PR) (N.D. Cal. Aug. 15, 2014)