Curry v. Covello
- Richard Seeborg
- 3:20-cv-01140
- U.S. District Court · Northern District of California
- 3
In Curry v. Covello, Judge Seeborg found Curry’s federal challenge cognizable but ordered a response because it appeared untimely.
Anthony Desean Curry, whose federal petition will proceed to a response or possible procedural motion, and Patrick L. Covello, who was ordered to respond or may move to dismiss on procedural grounds.
What happened
Anthony Desean Curry v. Patrick L. Covello concerns Curry’s petition challenging his state convictions and sentence under federal law. He was convicted in 2008 of attempted murder and assault with serious bodily injury, and he said his sentence violated his federal constitutional rights.
The court found that the petition stated a claim that could be considered and ordered Patrick L. Covello to respond by October 5, 2020. The court noted that the petition appeared late because it was filed in 2020, outside the usual one-year filing period, and allowed the respondent to file a motion to dismiss on that ground instead of an answer.
This order did not decide whether Curry should receive relief. Judge Seeborg required the case to proceed through a response or a procedural motion and warned that the action could later be dismissed if Curry failed to prosecute it.
The detailed version
- Curry v. Covello · No. 3:20-cv-01140
- Richard Seeborg
- June 22, 2020
Background
Anthony Desean Curry filed a petition under 28 U.S.C. § 2254 seeking federal relief from state convictions and a sentence. According to the petition, a Contra Costa Superior Court jury convicted Curry in 2008 of attempted murder and assault with serious bodily injury. The opinion also states that Curry was denied relief on state judicial review.
Curry claimed that his sentence violated federal constitutional rights. The petition was filed in 2020, and the court noted that it appeared untimely under the one-year statute of limitations for federal petitions challenging state custody.
Court’s analysis
The court reviewed the petition under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. It explained that summary dismissal is appropriate only when a petition’s allegations are vague or conclusory, clearly incredible, plainly frivolous, or false. Construing Curry’s allegations liberally, the court determined that they stated a cognizable claim—one that could properly be considered in a federal proceeding.
The court did not decide whether Curry’s constitutional claim was valid or whether he was entitled to relief. Instead, it directed the respondent to consider first whether the petition was untimely. The respondent could file a motion to dismiss on procedural grounds rather than an answer, but was not required to do so.
Order
The court ordered the respondent to file an answer by October 5, 2020, showing why the requested relief should not be granted, and to provide relevant portions of the state trial record. Alternatively, the respondent could file a procedural motion to dismiss by that date. Curry could respond within the deadlines stated in the order.
The court also instructed Curry to serve his filings on the respondent’s counsel, keep the court and respondent informed of address changes, and comply with court orders. It warned that failing to prosecute the case could result in dismissal under Federal Rule of Civil Procedure 41(b). The filing fee had been paid.
Disposition and classification
Judge Richard Seeborg issued an order to show cause requiring a response to Curry’s petition. The order did not grant or deny the requested federal relief and did not resolve the possible timeliness issue. This is a procedural order because the court screened the petition and directed the next steps without reaching the merits of the constitutional challenge.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.