United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WILLIAM CHARLES CARNELL,

Petitioner,

 v.

KELLY HARRINGTON, Warden,

Respondent. ______________________________ 

 

)

)

)

)

)

)

)

)

)

)

No. C 09-1847 MMC (PR) 

ORDER TO SHOW CAUSE;

DIRECTING CLERK TO

SUBSTITUTE WARDEN KELLY

HARRINGTON

AS RESPONDENT

On April 28, 2009, petitioner, a California prisoner incarcerated at Kern Valley State

Prison and proceeding pro se, filed the above-titled petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. On July 10, 2009, the Court found the petition stated a

cognizable claim for relief. The Court determined the petition could not go forward,

however, because a proper respondent had not been named. Specifically, petitioner had

identified two respondents, the “State of California” and the “Humboldt County Superior

Court,” but had not named the state officer having custody of petitioner. See Rule 2, Rules

Governing Section 2254 Cases. The Court granted petitioner leave to file an amendment to

the petition to substitute, as the respondent, the warden of the prison in which petitioner

currently is incarcerated.

Petitioner has filed an amendment to the petition, naming the warden of Kern Valley

State Prison as his custodian. Accordingly, the Court will direct the Clerk of the Court to

Case 3:09-cv-01847-MMC Document 15 Filed 04/19/10 Page 1 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

substitute Warden Kelly Harrington as the respondent to the petition.

As the Court found in its prior order, petitioner has stated a cognizable claim for relief

with respect to his 1998 convictions for attempted murder and assault with a deadly weapon,

for which petitioner was sentenced to thirty years to life in state prison. Specifically,

petitioner has stated a claim for ineffective assistance of counsel, as based on petitioner’s

discovery in 2006 that his trial attorney had never advised him that the District Attorney, in

April 1997, had conveyed an offer to petitioner’s attorney that would have allowed petitioner

to plead guilty to assault with a deadly weapon in exchange for a determinate sentence of

twenty-one years, which plea, petitioner states, he would have accepted had he been so

advised. 

Accordingly, respondent will be ordered to respond to the petition, as set forth below. 

CONCLUSION

For the reasons stated above, the Court orders as follows:

1. The Clerk of the Court shall substitute Warden Kelly Harrington as the respondent

in this action.

2. The Clerk shall serve by certified mail a copy of this order, the amended petition

(Docket No. 13), and all attachments thereto, on respondent and respondent’s counsel, the

Attorney General for the State of California. The Clerk shall also serve a copy of this order

on petitioner. 

3. Respondent shall file with the Court and serve on petitioner, within ninety (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. 

If petitioner wishes to respond to the answer, he shall do so by filing a traverse with

the Court and serving it on respondent’s counsel within thirty (30) days of the date the

Case 3:09-cv-01847-MMC Document 15 Filed 04/19/10 Page 2 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

answer is filed.

4. In lieu of an answer, respondent may file, within ninety (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 thirty (30) days of the date the motion is filed, and

respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of

the date any opposition is filed.

5. 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. 

6. 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).

7. Upon a showing of good cause, requests for a reasonable extension of time will be

granted provided they are filed on or before the deadline they seek to extend.

IT IS SO ORDERED.

DATED: April 19, 2010 _________________________ MAXINE M. CHESNEY

United States District Judge

Case 3:09-cv-01847-MMC Document 15 Filed 04/19/10 Page 3 of 3