federal courts must 16 construe pro se petitions for writs of habeas corpus liberally
How later courts described this case
- federal courts must 16 construe pro se petitions for writs of habeas corpus liberally
- Rule 41(b) applicable in habeas cases
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 TREMAIN L. BARKER, Case No. 20-cv-05540-JST
8 Petitioner,
ORDER TO SHOW CAUSE
v.
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10 R. NEUSHMID,
Respondent.
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13 Petitioner, a state prisoner incarcerated at Correctional Training Facility,1 has filed a pro se
14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction from
15 San Mateo County Superior Court. ECF No. 1 at 1. Petitioner has paid the filing fee. ECF No. 4.
16 I. BACKGROUND
17 In 1997, petitioner was convinced by a San Mateo County jury of attempted first-degree
18 murder and attempted second-degree murder (Cal. Pen. Code §§ 187, 664), with enhancements for
19 use of a firearm (Cal. Pen. Code § 12202.5(a)) and being armed with a firearm (Cal. Pen. Code §
20 12202(a)(1)). ECF No. 1 at 2, 26. Petitioner was sentenced to a total term of twenty-seven years
21 to life. ECF No. 1 at 26.
22 Petitioner states that he raised the claims in the instant federal petition in petitions filed
23 with the San Mateo County Superior Court, the California Court of Appeal, and the California
24 Supreme Court, all of which were denied. ECF No. 1 at 3-4.
25 On or about July 26, 2020, petitioner filed the instant federal habeas petition.2
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1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure,
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the Clerk of the Court is directed to substitute Warden Craig Koenig as Respondent because he is
1 II. DISCUSSION
2 A. Standard of Review
3 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
4 custody pursuant to the judgment of a State court only on the ground that he is in custody in
5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A
6 district court considering an application for a writ of habeas corpus shall “award the writ or issue
7 an order directing the respondent to show cause why the writ should not be granted, unless it
8 appears from the application that the applicant or person detained is not entitled thereto.” 28
9 U.S.C. § 2243.
10 B. Claim
11 Petitioner alleges that he is in custody in violation of the Eighth Amendment and the
12 Fourteenth Amendment because California State Prison – Solano unlawfully ceded jurisdiction to
13 the Board of Parole Hearings to determine his eligibility for release. ECF No. 1 at 7-11.
14 Liberally construed, this claim appears cognizable under § 2254 and merits an answer from
15 respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must
16 construe pro se petitions for writs of habeas corpus liberally).
17 CONCLUSION
18 For the foregoing reasons and for good cause shown,
19 1. The Clerk shall serve electronically a copy of this order upon the respondent and
20 the respondent’s attorney, the Attorney General of the State of California, at the following email
21 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via
22 the Electronic Case Filing System for the Northern District of California. The Clerk shall serve by
23 mail a copy of this order on petitioner.
24 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days
25 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
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Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date
1 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted
2 || based on the claims found cognizable herein. Respondent shall file with the answer and serve on
3 petitioner a copy of all portions of the state trial record that have been transcribed previously and
4 || that are relevant to a determination of the issues presented by the petition.
5 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
6 || Court and serving it on respondent within thirty (30) days of the date the answer is filed.
7 3, Respondent may file, within sixty (60) days, a motion to dismiss on procedural
8 || grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
9 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the
10 || Court and serve on respondent an opposition or statement of non-opposition within twenty-eight
11 (28) days of the date the motion is filed, and respondent shall file with the Court and serve on
12 || petitioner a reply within fourteen (14) days of the date any opposition is filed.
13 4. Petitioner is reminded that all communications with the Court must be served on
14 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep
15 || the Court informed of any change of address and must comply with the Court’s orders in a timely
a 16 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
17 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir.
18 1997) (Rule 41(b) applicable in habeas cases).
19 5. Upon a showing of good cause, requests for a reasonable extension of time will be
20 || granted provided they are filed on or before the deadline they seek to extend.
21 IT IS SO ORDERED.
22 || Dated: November 30, 2020 . .
2 JON S. TIGAR
24 ited States District Judge
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