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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 BENJAMIN PUGA CARRILLO, Case No. 16-cv-00565-NJV Petitioner, 9 ORDER FOR RESPONDENT TO SHOW CAUSE v. 10 11 WILLIAM MUNIZ, United States District Court Northern District of California Respondent. 12 13 14 Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 15 U.S.C. § 2254. Petitioner is represented by counsel. Petitioner was convicted in Monterey 16 County, which is in this district. Venue is therefore proper. See 28 U.S.C. § 2241(d). Petitioner 17 has consented to the jurisdiction of a Magistrate Judge. (Doc. 4.) 18 BACKGROUND 19 On May 10, 2011, a jury found petitioner guilty of first degree murder and shooting at an 20 inhabited vehicle. He was sentenced to fifty years to life in prison. Id. His direct appeal was 21 denied as were several state habeas petitions. 22 DISCUSSION 23 A. Standard of Review 24 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody 26 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 27 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 28 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 1 application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant 2 to a judgment of a state court must “specify all the grounds for relief available to 3 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 5 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 6 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 7 1970)). 8 B. Legal Claims 9 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 11 United States District Court Northern District of California 10 driver's identity, in violation of petitioner's rights to due process, a fair trial and effective 12 assistance of counsel; (2) the trial court's jury instructions allowed the jury to find petitioner guilty 13 on proof less than beyond a reasonable doubt; (3) petitioner received ineffective assistance from 14 trial counsel. Liberally construed, these claims are sufficient to require a response. 15 CONCLUSION 16 1. The clerk shall serve by regular mail a copy of this order, the petition and all attachments 17 thereto and a Magistrate Judge jurisdiction consent form on respondent and respondent's attorney, 18 the Attorney General of the State of California. 19 2. Respondent shall file with the court and serve on petitioner, within fifty-six (56) 20 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 21 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 22 not be granted. Respondent shall file with the answer and serve on petitioner a copy of all 23 portions of the state trial record that have been transcribed previously and that are relevant 24 to a determination of the issues presented by the petition. 25 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with 26 the court and serving it on respondent within twenty-eight (28) days of his receipt of the 27 answer. 28 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 2 1 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 2 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the 3 date this order is entered. If a motion is filed, petitioner shall file with the court and serve 4 on respondent an opposition or statement of non-opposition within twenty-eight (28) days of 5 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 6 within fourteen (14) days of receipt of any opposition. 7 IT IS SO ORDERED. 8 9 10 United States District Court Northern District of California 11 Dated: May 18, 2016 ______________________________________ NANDOR J. VADAS United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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