Carrillo v. Muniz

Filing 5

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 7/18/2016. Signed by Judge Nandor J. Vadas on 5/18/2016. (njvlc1, COURT STAFF) (Filed on 5/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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BENJAMIN PUGA CARRILLO,

Case No. 16-cv-00565-NJV

Petitioner,
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ORDER FOR RESPONDENT TO
SHOW CAUSE

v.
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WILLIAM MUNIZ,

United States District Court
Northern District of California

Respondent.
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Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Petitioner is represented by counsel. Petitioner was convicted in Monterey

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County, which is in this district. Venue is therefore proper. See 28 U.S.C. § 2241(d). Petitioner

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has consented to the jurisdiction of a Magistrate Judge. (Doc. 4.)

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BACKGROUND

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On May 10, 2011, a jury found petitioner guilty of first degree murder and shooting at an

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inhabited vehicle. He was sentenced to fifty years to life in prison. Id. His direct appeal was

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denied as were several state habeas petitions.

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DISCUSSION

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A. Standard of Review

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant

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to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

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B. Legal Claims

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As grounds for federal habeas relief, petitioner asserts that: (1) the trial court's jury instructions
impermissibly directed the jury to consider the gang evidence when deciding the issue of the

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United States District Court
Northern District of California

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driver's identity, in violation of petitioner's rights to due process, a fair trial and effective

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assistance of counsel; (2) the trial court's jury instructions allowed the jury to find petitioner guilty

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on proof less than beyond a reasonable doubt; (3) petitioner received ineffective assistance from

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trial counsel. Liberally construed, these claims are sufficient to require a response.

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CONCLUSION

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

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thereto and a Magistrate Judge jurisdiction consent form on respondent and respondent's attorney,

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the Attorney General of the State of California.

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

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with

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the court and serving it on respondent within twenty-eight (28) days of his receipt of the

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answer.

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3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the

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date this order is entered. If a motion is filed, petitioner shall file with the court and serve

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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of

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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply

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within fourteen (14) days of receipt of any opposition.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: May 18, 2016
______________________________________
NANDOR J. VADAS
United States Magistrate Judge

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