Fockaert v. Koenig ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 MATTHEW M. FOCKAERT, 4 Case No. 20-cv-02847-RS (PR) Petitioner, 5 v. ORDER TO SHOW CAUSE 6 C. KOENIG, 7 Respondent. 8 9 10 INTRODUCTION 11 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 12 convictions and sentence. The petition for such relief is now before the Court for review 13 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 14 The petition states cognizable claims. Respondent shall file a response to the 15 petition on or before January 18, 2021. 16 BACKGROUND 17 According to the petition, in 2018 petitioner pleaded nolo contendere in the 18 Humboldt County Superior Court to charges of attempted second degree murder and false 19 imprisonment and to a sentencing enhancement for personally inflicting great bodily injury 20 while committing or attempting to commit a felony. (Pet., Dkt. No. 1 at 2.) A sentence of 21 10 years was imposed. (Id. at 1.) 22 Petitioner filed no direct appeals, but he did petition for state collateral relief, which 23 was denied. (Id. at 2-4.) This federal habeas petition followed. 24 DISCUSSION 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 “award the writ or issue an order directing the respondent to show cause why the writ 2 should not be granted, unless it appears from the application that the applicant or person 3 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 4 only where the allegations in the petition are vague or conclusory, palpably incredible, or 5 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 6 As grounds for federal habeas relief, petitioner claims his sentence violates his 7 federal constitutional rights in the ways described in the petition, (Pet., Dkt. No. 1 at 5). 8 When liberally construed, these allegations state claims for relief. 9 CONCLUSION 10 1. The Clerk shall serve electronically a copy of this order upon the respondent and 11 the respondent’s attorney, the Attorney General of the State of California, at the following 12 email address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are 13 available via the Electronic Case Filing System for the Northern District of California. 14 The Clerk shall serve by mail a copy of this order on petitioner. 15 2. On or before January 18, 2021, respondent shall file with the Court and serve 16 on petitioner an answer conforming in all respects to Rule 5 of the Rules Governing 17 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 18 based on petitioner’s cognizable claims. Respondent shall file with the answer and serve 19 on petitioner a copy of all portions of the state trial record that previously have been 20 transcribed and that are relevant to a determination of the issues presented by the petition. 21 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 22 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 23 answer is filed. 24 4. In lieu of an answer, respondent may file, on or before January 18, 2021, a 25 motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 26 Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 27 petitioner shall file with the Court and serve on respondent an opposition or statement of 1 non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 2 file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 3 opposition is filed. 4 5. Petitioner is reminded that all communications with the Court must be served on 5 respondent by mailing a true copy of the document to respondent’s counsel. 6 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 7 Court and respondent informed of any change of address and must comply with the 8 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 9 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 10 7. Upon a showing of good cause, requests for a reasonable extension of time will 11 be granted provided they are filed on or before the deadline they seek to extend. 12 8. The filing fee has been paid. (Dkt. No. 7.) 13 9. The Clerk shall amend the docket to reflect that C. Koenig, the warden of the 14 prison in which petitioner is housed, is the sole respondent in this action. Petitioner also 15 named Ralph Diaz, the Secretary of the CDCR, as a respondent in addition to Koenig. 16 Koenig, not Diaz, is the sole proper respondent here, as he is the custodian having day-to- 17 day control over petitioner, the only person who can produce “the body” of the petitioner. 18 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (quoting Guerra v. Meese, 19 786 F.2d 414, 416 (D.C. Cir. 1986)). The Clerk shall terminate Diaz as a respondent. 20 IT IS SO ORDERED. 21 Dated: September _2_1_, 2020 _________________________ 22 RICHARD SEEBORG 23 United States District Judge 24 25 26 27