Free Order - District Court of California - California

Case 3:07-cv-04846-JSW

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INTRODUCTION Petitioner, a prisoner of the State of California, currently incarcerated at the Correctional Training Facility in Soledad, California, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the Board of Prison Terms ("BPT") denial of vs. BEN CURRY, WARDEN, Respondent JOSE LUIS FLORES, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 07-4846 JSW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORDER TO SHOW CAUSE

parole during parole suitability proceedings. Petitioner has paid the filing fee. This order
directs Respondent to show cause why the petition should not be granted. BACKGROUND According to the petition, Petitioner was convicted in San Diego County Superior Court jury of kidnap for ransom with a firearm. In 1993, Petitioner was sentenced to seven years-to-life in state prison. In this habeas action, Petitioner does not challenge his

conviction, but instead challenges the execution of his sentence. Petitioner alleges that
after his parole suitability hearing in 2006, the BPT found him unsuitable for parole, in violation of his federal constitutional right to due process. He alleges that he has

exhausted state judicial remedies as to all of the claims raised in his federal petition.

Case 3:07-cv-04846-JSW

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I. Standard of Review

DISCUSSION

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. II. Legal Claims

Petitioner alleges that his constitutional rights were violated by the BPT's finding of parole unsuitability in 2006. Liberally construed, the allegations are sufficient to warrant a response from Respondent. See Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003); Board of Pardons v. Allen, 482 U.S. 369 (1987); see, e.g., Morales. v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995).
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, and all attachments thereto, on Respondent Ben Curry, Warden of the Correctional Training Facility, who is Petitioner's custodian, 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 granted. Respondent shall file with the answer and serve on Petitioner a copy of all

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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 filing 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. It is Petitioner's responsibility to prosecute this case. Petitioner must keep

the Court 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: January 30, 2008 JEFFREY S. WHITE United States District Judge

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v. BEN CURRY et al, Defendant. JOSE LUIS FLORES, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-04846 JSW CERTIFICATE OF SERVICE

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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 January 30, 2008, 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.

Jose Luis Flores J03392 Correctional Training Facility P.O. Box 689 Soledad, CA 93960 Dated: January 30, 2008 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk