Porras v. Lewis
Filing
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ORDER FOR RESPONDENT TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 8/7/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 8/7/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MARK A. PORRAS,
Petitioner,
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vs.
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ORDER FOR RESPONDENT
TO SHOW CAUSE
G. D. LEWIS, Warden,
Respondent.
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For the Northern District of California
United States District Court
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No. C 12-3005 PJH (PR)
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Petitioner, a state prisoner incarcerated at Pelican Bay State Prison (PBSP), has
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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. He has paid the
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filing fee.
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BACKGROUND
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Petitioner challenges the retroactive application of changes in California Penal Code
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section 2933.6 to him. Effective January 25, 2010, section 2933.6 was changed to provide
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that validated gang members or associates are ineligible to earn credits off their sentence
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while housed in a Secured Housing Unit (SHU), Psychiatric Services Unit (PSU) or
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Administrative Segregation Unit (ASG).
Petitioner unsuccessfully sought relief from the state courts until the Supreme Court
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of California denied his final state petition on March 28, 2012.
DISCUSSION
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A.
Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody
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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.
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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
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application for a federal writ of habeas corpus filed by a prisoner who is in state custody
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the
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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”
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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.
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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject
to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,
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For the Northern District of California
United States District Court
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1108 (9th Cir. 1996) (Schroeder, J., concurring).
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B.
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Legal Claims
The Ex Post Facto Clause forbids the states from statutorily cancelling time credits
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and making ineligible for early release any prisoner who was previously eligible. See Lynce
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v. Mathis, 519 U.S. 433, 437-39, 447-49 (1997) (retroactive cancellation of prison credits
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has impermissible effect of lengthening period of incarceration in violation of Ex Post Facto
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Clause). Liberally construed, petitioner's ex post facto claim appears cognizable under §
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2254 and merits an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020
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(9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus
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liberally).
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CONCLUSION
1. The clerk shall serve by regular mail a copy of this order and the petition and all
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attachments thereto on respondent and respondent's attorney, the Attorney General of the
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State of California. The clerk also shall serve a copy of this order on petitioner.
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2. Respondent shall file with the court and serve on petitioner, within sixty days of
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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be
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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
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to a determination of the issues presented by the petition.
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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 thirty days of his receipt of the answer.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the
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date this order is entered. If a motion is filed, petitioner shall file with the court and serve
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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of
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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply
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For the Northern District of California
answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing
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United States District Court
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within fourteen days of receipt of any opposition.
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4. Petitioner is reminded that all communications with the court must be served on
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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner
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must keep the court informed of any change of address and must comply with the court's
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orders in a timely fashion. Failure to do so may result in the dismissal of this action for
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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.
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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
Dated: August 7, 2012.
PHYLLIS J. HAMILTON
United States District Judge
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