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No. C 09-1634 RS (PR)

ORDER TO SHOW CAUSE

United States District Court

For the Northern District of California

 *E-Filed 4/7/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

GARY BERNARD MOORE,

Petitioner,

v.

ANTHONY HEDGPETH, Warden, 

Respondent. /

No. C 09-1634 RS (PR)

ORDER TO SHOW CAUSE

INTRODUCTION

Petitioner Gary Bernard Moore, a state prisoner at Kern Valley State Prison, filed this

pro se action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now

before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing

Section 2254 Cases. Petitioner has paid the filing fee. 

BACKGROUND

According to the petition, petitioner, in 2006, was found guilty of burglary, and was

sentenced to twenty-nine years in state prison. Petitioner sought, and was denied, relief on

direct and collateral state review. This federal petition followed. 

 

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1 This claim is a consolidation of claims 1–3 and 5 stated in the petition. 

No. C 09-1634 RS (PR)

2 ORDER TO SHOW CAUSE

DISCUSSION

This Court may entertain a petition for 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). 

A district court considering an application for a writ of habeas corpus 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). 

As grounds for federal habeas relief, petitioner alleges that (1) the trial court violated

his right to due process when imposed a sentence based on convictions that did not qualify as

sentencing enhancements;1

 (2) he was denied his Confrontation Clause rights when he was

denied the opportunity to testify and examine witnesses and evidence at his sentencing

hearing; and (3) his sentence violates the terms of a prior plea agreement. Liberally

construed, these claims appear to be cognizable in a federal habeas action. 

CONCLUSION 

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

2. 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 previously have

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No. C 09-1634 RS (PR)

3 ORDER TO SHOW CAUSE

 been transcribed and that are relevant to a determination of the issues presented by

the petition. 

3. 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

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 7, 2010 

 RICHARD SEEBORG

United States District Judge

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No. C 09-1634 RS (PR)

4 ORDER TO SHOW CAUSE

THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:

Gary B. Moore 

F-17016 

Kern Valley State Prison 

P. O. 5104 

Delano, Ca 93216 

DATED: 04/7/2010 

 

 

s/ Chambers Staff 

Chambers of Judge Richard Seeborg

* Counsel are responsible for distributing copies of this document to any co-counsel who have

not registered with the Court's electronic filing system.

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