Phang v. People of the State of California

Background

Vinh The Phang, identified as a state prisoner, filed a petition under 28 U.S.C. § 2254. That statute allows a state prisoner to seek federal review of custody. Phang paid the full filing fee. The opinion states that the petition does not appear from its face to be without merit.

Order

The court issued an order to show cause. It directed the Clerk to serve the order on Roberto A. Arias, identified in the caption as the warden, and on Arias’s attorney, the Attorney General of California. The Clerk was also directed to mail a copy to Phang.

The court gave Arias 28 days from issuance of the order to state whether he consents to or declines the assigned magistrate judge’s authority. The order states that declining consent would not have adverse consequences and that the case would then be reassigned to a district judge. Regardless of consent, the parties must follow the briefing schedule.

Within 60 days of issuance, Arias must file and serve an answer complying with Rule 5 of the Rules Governing Section 2254 Cases and showing cause why the requested relief should not be issued. Arias must also file relevant portions of previously transcribed state records. Instead of an answer, Arias may file within the same 60-day period a motion to dismiss on procedural grounds. If that occurs, Phang has 60 days after receiving the motion to file an opposition or statement of non-opposition, and Arias has 14 days after receiving any opposition to file a reply.

If Phang responds to an answer, he must file and serve a traverse within 60 days after receiving the answer. If he does not respond, the petition will be treated as submitted and ready for decision 60 days after service of the answer.

Additional directives and disposition

The order states that Phang is responsible for prosecuting the case, keeping the court and Arias informed of address changes, complying with court orders, and serving Arias’s counsel with copies of communications filed with the court. It also states that, under Northern District Local Rule 3-11, the court may dismiss a self-represented action without prejudice under specified circumstances involving returned mail and failure to provide a current address. The court said that requests for reasonable extensions would be granted upon a showing of good cause if filed by the deadline they seek to extend.

The court ordered that Roberto A. Arias be substituted as respondent under Federal Rule of Civil Procedure 25(d). Judge Westmore did not decide the merits of Phang’s petition in this order; instead, the order required a response or a procedural motion and established the next steps in the case.