Fuller v. Ndoh
Filing
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ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 8/21/2017. Signed by Judge Nandor J. Vadas on 6/21/2017. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 6/21/2017)
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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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ROBERT ELI FULLER,
Case No. 17-cv-3196-NJV (PR)
Petitioner,
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v.
ORDER FOR RESPONDENT TO SHOW
CAUSE
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R. NDOH,
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. Petitioner was convicted in Santa Clara County, so venue is proper here. See
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28 U.S.C. § 2241(d). Petitioner has paid the filing fee and consented to the jurisdiction of a
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Magistrate Judge.
BACKGROUND
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A jury found petitioner guilty of battery causing serious bodily injury and assault by
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means of force likely to produce great bodily injury. Petition at 2. He was sentenced to 21 years
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in state prison. Petition at 1. He states his appeals were denied. Petition at 3.
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. foll. § 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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Legal Claims
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Petitioner’s sole ground for federal habeas relief is that his due process rights and right to a
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fair trial were violated by the trial court’s issuance of a mutual combat jury instruction. This is
sufficient to proceed.
CONCLUSION
United States District Court
Northern District of California
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1. The clerk shall serve by regular mail a copy of this order, the petition and all
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attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and
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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.
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2. 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.
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3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as
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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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4. 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: June 21, 2017
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NANDOR J. VADAS
United States Magistrate Judge
United States District Court
Northern District of California
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