Ellis v. Ducart

Northern District of California, cand-4:2015-cv-02690

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 1/25/2016. Signed by Chief Magistrate Judge Joseph C. Spero on 10/27/15.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RANDALL E. ELLIS, 7 Case No. 15-cv-02690-JCS (PR) Petitioner, 8 v. ORDER TO SHOW CAUSE; 9 CLARK DUCART, INSTRUCTIONS TO CLERK 10 Respondent. 11 12 Northern District of California United States District Court 13 INTRODUCTION 14 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from a prison 15 disciplinary decision rendered by his jailors at Pelican Bay State Prison.1 The petition for 16 such relief is here for review under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 17 Section 2254 Cases. 18 Respondent shall file a response to the petition on or before January 25, 2016. This 19 Court's jurisdiction over a petition for habeas relief from a prison disciplinary decision has 20 been called into question by Nettles v. Grounds, 788 F.3d 992 (9th Cir. 2015). In his first 21 response to the petition, respondent shall address, preferably by way of a motion to 22 dismiss, whether (1) Nettles requires dismissal of the instant action, and (2) petitioner can 23 or should bring his claims through a civil rights action under 42 U.S.C. § 1983. 24 BACKGROUND 25 According to the petition, in 2013, petitioner's jailors at Pelican Bay found him 26 1 27 Petitioner consented to magistrate judge jurisdiction. (Pet. at 7.) The magistrate judge, then, has jurisdiction to issue this order, even though respondents have not been served or 28 consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995). 1 guilty of a charge of promoting gang activity. It appears petitioner has exhausted his state 2 judicial remedies as to the claim he raises here. 3 DISCUSSION 4 This Court may entertain a petition for writ of habeas corpus "in behalf of a person 5 in custody pursuant to the judgment of a State court only on the ground that he is in 6 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 7 § 2254(a). A district court considering an application for a writ of habeas corpus shall 8 "award the writ or issue an order directing the respondent to show cause why the writ 9 should not be granted, unless it appears from the application that the applicant or person 10 detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate 11 only where the allegations in the petition are vague or conclusory, palpably incredible, or 12 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Northern District of California United States District Court 13 As grounds for federal habeas relief, petitioner claims that his jailors deprived him 14 of due process at his disciplinary hearing. When liberally construed, this claim appears to 15 be cognizable in a federal habeas action. 16 CONCLUSION 17 1. The Clerk shall serve a copy of this order, the petition and all attachments 18 thereto, and a Magistrate Judge jurisdiction consent form on respondent and respondent's 19 counsel, the Attorney General for the State of California. The Clerk shall also serve a copy 20 of this order on petitioner. 21 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) 22 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 23 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 24 not be granted based on petitioner's cognizable claims. Respondent shall file with the 25 answer and serve on petitioner a copy of all portions of the state trial record that previously 26 have been transcribed and that are relevant to a determination of the issues presented by 27 the petition. 28 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 1 with the Court and serving it on respondent's counsel within thirty (30) days of the date the 2 answer is filed. 3 4. In lieu of an answer, respondent may file, within ninety (90) days of the date this 4 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 5 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent 6 files such a motion, petitioner shall file with the Court and serve on respondent an 7 opposition or statement of non-opposition within thirty (30) days of the date the motion is 8 filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen 9 (15) days of the date any opposition is filed. 10 5. Petitioner is reminded that all communications with the Court must be served on 11 respondent by mailing a true copy of the document to respondent's counsel. 12 6. It is petitioner's responsibility to prosecute this case. Petitioner must keep the Northern District of California United States District Court 13 Court and respondent informed of any change of address and must comply with the 14 Court's orders in a timely fashion. Failure to do so may result in the dismissal of this 15 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 16 7. Upon a showing of good cause, requests for a reasonable extension of time will 17 be granted provided they are filed on or before the deadline they seek to extend. 18 8. The Court notes that the filing fee has been paid. 19 IT IS SO ORDERED. 20 Dated: October 27, 2015 _________________________ 21 JOSEPH C. SPERO 22 Chief Magistrate Judge 23 24 25 26 27 28 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RANDALL E. ELLIS, 7 Case No. 15-cv-02690-JCS Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 CLARK DUCART, 10 Defendant. 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. Northern District of California United States District Court District Court, Northern District of California. 13 14 That on October 27, 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 15 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. 16 17 Randall E. Ellis ID: #:C-68764 Pelican Bay State Prison 18 P.O. Box 7500 Housing #:SHU D1-223 19 Crescent City, CA 95532 20 21 Dated: October 27, 2015 22 23 Susan Y. Soong Clerk, United States District Court 24 25 By:________________________ 26 Karen Hom, Deputy Clerk to the Honorable JOSEPH C. SPERO 27 28 4