Amaya v. Frauenheim

Filing 11

Order by Magistrate Judge Nandor J. Vadas granting 9 Motion for Leave to File Amended Petition and Order to Show Cause. (njvlc1, COURT STAFF) (Filed on 5/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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ALEXIS JOEL AMAYA,

Case No. 16-cv-5069-NJV (PR)

Petitioner,
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ORDER LIFTING STAY AND FOR
RESPONDENT TO SHOW CAUSE

v.
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SCOTT FRAUENHEIM,

Dkt. No. 9

United States District Court
Northern District of California

Respondent.
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. The case was stayed to petitioner could exhaust additional claims. (Doc. 7.)

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Petitioner has filed an amended petition and seeks to lift the stay. (Doc. 9.)
DISCUSSION

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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 in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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United States District Court
Northern District of California

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LEGAL CLAIMS
As grounds for federal habeas relief, petitioner asserts that: (1) there was a Fourth
Amendment violation with respect to a pretext call to petitioner’s house by the victim; (2) trial
counsel was ineffective for failing to file a motion to suppress evidence with respect to the pretext
call; (3) the trial court erred in admitting the evidence of the pretext phone call; (4) ineffective
assistance of appellate counsel for failing to raise the above claims; (5) the trial court erred in
admitting Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence; (6) the trial court
erred in allowing supplemental arguments by counsel during the jury’s deliberation and counsel
was ineffective for failing to object; and (7) the trial court abused its discretion in denying
petitioner probation.
The first claim in the petition regarding the Fourth Amendment violation is dismissed.
Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976), bars federal habeas review of Fourth
Amendment claims unless the state did not provide an opportunity for full and fair litigation of
those claims. Even if the state courts’ determination of the Fourth Amendment issues is improper,
it will not be remedied in federal habeas corpus actions so long as the petitioner was provided a
full and fair opportunity to litigate the issue. See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.
1983). California state procedure provides an opportunity for full litigation of any Fourth
Amendment claim. Sixth Amendment claims based on incompetent representation by counsel
with respect to Fourth Amendment issues may be the basis for a habeas action and are not barred
by Stone v. Powell. See Kimmelman v. Morrison, 477 U.S. 365, 373-83 (1986). Therefore, the
second claim may proceed as well as the remaining claims, which liberally construed, are
sufficient to require a response.
CONCLUSION
1. Petitioner’s motion to file an amended petition and lift the stay (Docket No. 9) is
GRANTED. The stay in this case is LIFTED and the case is REOPENED.
2. The clerk shall serve by regular mail a copy of this order, the petition (Docket No. 9)
and all attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and
respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a
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copy of this order on petitioner.
3. Respondent shall file with the court and serve on petitioner, within fifty-six (56) days of

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

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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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 the
court and serving it on respondent within twenty-eight (28) days of his receipt of the answer.
4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as

United States District Court
Northern District of California

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set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases.

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If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If

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a motion is filed, petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within twenty-eight (28) days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of

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receipt of any opposition.

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5. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep

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the court informed of any change of address and must comply with the court's orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: May 26, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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