1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 ERASMO FLORES, BK0548, Case No. 22-cv-09174-CRB (PR)

10 Petitioner,

ORDER TO SHOW CAUSE

11 v.

12 DANIEL CUEVA, Acting Warden,1 (ECF No. 4) 13 Respondent.

14 Petitioner, a state prisoner incarcerated at California Medical Facility (CMF) in Vacaville, 15 has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 16 conviction and sentence from Santa Clara County Superior Court. He also seeks leave to proceed 17 in forma pauperis (IFP) under 28 U.S.C. § 1915. 18 BACKGROUND 19 Petitioner pleaded no contest to a count of oral copulation with a child under 14 years old 20 by force, violence, duress, menace or fear, and a count of lewd and lascivious act on a child under 21 14 years old by force, violence, duress, menace or fear. Before sentencing, petitioner moved to 22 withdraw his plea, which the court denied. On August 1. 2019, petitioner was sentenced to the 23 agreed-upon term of 15 years in state prison. 24 Petitioner unsuccessfully appealed his conviction and sentence to the California Court of 25 Appeal and the Supreme Court of California, which on October 13, 2021 denied review of a 26 petition allegedly raising the same claims raised here. 27 1 DISCUSSION 2 A. Standard of Review 3 This court may entertain a petition for a writ of habeas corpus “in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 It shall “award the writ or issue an order directing the respondent to show cause why the 7 writ should not be granted, unless it appears from the application that the applicant or person 8 detained is not entitled thereto.” Id. § 2243. 9 B. Claims 10 Petitioner seeks federal habeas corpus relief by raising two claims: (1) the trial court 11 violated his due process rights by denying his motion to withdraw his plea, and (2) the trial court 12 violated his due process rights by imposing fines without a finding that he had the ability to pay 13 them. Liberally construed, the claims appear arguably cognizable under § 2254 and merit an 14 answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 15 must construe pro se petitions for writs of habeas corpus liberally). 16 CONCLUSION 17 For the foregoing reasons and for good cause shown, 18 1. Petitioner’s request to proceed IFP (ECF No. 4) is GRANTED. 19 2. The clerk shall serve electronically a copy of this order upon the respondent and the 20 respondent’s attorney, the Attorney General of the State of California, at the following email 21 addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and the 22 exhibits thereto are available via the Electronic Case Filing System for the Northern District of 23 California. The clerk shall serve by mail a copy of this order on petitioner. 24 3. Respondent shall file with the court and serve on petitioner, within 60 days of the 25 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 26 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 27 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state ] issues presented by the petition. 2 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 3 court and serving it on respondent within 30 days of his receipt of the answer. 4 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 5 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 6 || 2254 Cases. If respondent files such a motion, petitioner must serve and file an opposition or 7 || statement of non-opposition not more than 28 days after the motion is served and filed, and 8 || respondent must serve and file a reply to an opposition not more than 14 days after the opposition 9 || 1s served and filed. 10 5. Petitioner is reminded that all communications with the court must be served on 11 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must also 12 || keep the court and all parties informed of any change of address. 13 IT IS SO ORDERED. S 14 Dated: February 13, 2023 A

CHARLES R. BREYER

16 United States District Judge

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