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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EUREKA DIVISON

FERNANDO LOPEZ,

Petitioner,

v.

WARDEN RON DAVIS,

Respondent.

Case No. 16-cv-7390-NJV (PR) 

ORDER FOR RESPONDENT TO SHOW 

CAUSE

Dkt. No. 2

Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. Petitioner was found guilty of a prison rule violation while incarcerated at 

San Quentin State Prison, so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner has also 

applied for leave to proceed in forma pauperis and consented to the jurisdiction of a Magistrate 

Judge. Petition at 7.

BACKGROUND

Petitioner was found in possession of a cell phone and assessed a 90 day loss off credits. 

Petition at 5, 34. His petition to the California Supreme Court was denied. Id. at 9. 

DISCUSSION

Standard of Review

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); Rose v. 

Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 

requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 

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United States District Court

Northern District of California

habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 

must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 

each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ 

pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 

of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 

688, 689 (1st Cir. 1970)).

Legal Claims

As grounds for federal habeas relief, petitioner asserts that there was insufficient evidence 

to find him guilty of the charged offense and the legal standard for guilt was not correctly noticed 

in the charges. Liberally construed, this claim is sufficient to require a response.

CONCLUSION

1. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED.

2. The clerk shall serve by regular mail a copy of this order, the petition and all 

attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and 

respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a 

copy of this order on petitioner. 

3. Respondent shall file with the court and serve on petitioner, within fifty-six (56) days of 

the issuance of this order, 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. 

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 within twenty-eight (28) days of his receipt of the answer.

4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as 

set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 

If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If 

a motion is filed, petitioner shall file with the court and serve on respondent an opposition or 

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United States District Court

Northern District of California

statement of non-opposition within twenty-eight (28) days of receipt of the motion, and 

respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of 

receipt of any opposition.

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. Petitioner must keep 

the court 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). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 

1997) (Rule 41(b) applicable in habeas cases).

IT IS SO ORDERED.

Dated: January 25, 2017

________________________

NANDOR J. VADAS

United States Magistrate Judge

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