Free Order to Show Cause - District Court of California - California

Case 3:07-cv-03627-MMC

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Filed 10/23/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MALIK ALI MUHAMMAD, ) ) Petitioner, ) ) v. ) ) DERRAL ADAMS, Warden, ) ) Respondent. ) ______________________________ ) No. C 07-3627 MMC (PR) ORDER TO SHOW CAUSE

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United States District Court

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For the Northern District of California

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On July 13, 2007, petitioner, a California prisoner proceeding pro se, filed the abovetitled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. BACKGROUND In 2003, in the Superior Court of Alameda County, petitioner was found guilty of stalking and making criminal threats. He was placed on probation. In 2004, his probation was revoked and he was sentenced to a term of thirty-two months in state prison. The California Court of Appeal affirmed, and the California Supreme Court denied the petition for review. Thereafter, petitioner challenged his conviction and sentence by habeas petitions filed in the San Mateo County Superior Court, the California Court of Appeal, and the Supreme Court of California. All of the petitions were denied. 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

Case 3:07-cv-03627-MMC

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Filed 10/23/2007

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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. 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) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). Petitioner claims: (1) the trial court's order prohibiting petitioner, who was proceeding in propria persona, from contacting the complaining witness's employer violated petitioner's right to due process and his Sixth Amendment right to a fair trial; (2) the trial court's refusal to allow petitioner to have access to funds that would enable petitioner to seek and obtain expert witness testimony violated petitioner's right to due process and his Sixth Amendment right to a fair trial; (3) the revocation of petitioner's probation violated numerous constitutional provisions; and (4) petitioner received ineffective assistance of appellate counsel. Liberally construed, petitioner's claims are cognizable. CONCLUSION For the reasons stated above, the Court orders as follows: 1. The Clerk of the Court shall serve by certified mail a copy of this order and the petition, along with all attachments thereto, upon respondent and respondent's attorney, the Attorney General for the State of California. The Clerk shall also serve a copy of this order on petitioner. 2. Respondent shall file with the Court and serve on petitioner, within 90 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 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 have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
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United States District Court

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For the Northern District of California

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Case 3:07-cv-03627-MMC

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Filed 10/23/2007

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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 30 days of the date the answer is filed. 3. In lieu of an answer, respondent may file, within 90 days of the date this order is filed, a motion to dismiss on procedural grounds, 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 30 days of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within 15 days of the date any opposition is filed. 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. 5. It is petitioner's responsibility to prosecute this case. Petitioner must keep the Court and respondent informed of any change of address and 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). 6. Upon a showing of good cause, requests for a reasonable extension of time will be granted as long as they are filed on or before the deadline they seek to extend. IT IS SO ORDERED. DATED: October 23, 2007 _________________________ MAXINE M. CHESNEY United States District Judge

United States District Court

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For the Northern District of California

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