Arbee v. Kernan et al

Filing 9

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 5/22/2018. Signed by Judge Robert M. Illman on 03/23/2018. (rmilc2, COURT STAFF) (Filed on 3/23/2018)

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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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LOUIS ARBEE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-05962-RMI
ORDER FOR RESPONDENT TO
SHOW CAUSE

v.
SCOTT KERNAN, et al.,
Defendants.

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Petitioner, a California prisoner proceeding through counsel, filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner was convicted in San Francisco

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venue is proper here. See 28 U.S.C. § 2241(d). Petitioner has paid the filing fee (Doc. 1), and has

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also consented to the jurisdiction of a Magistrate Judge (Doc. 6).

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BACKGROUND

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Following his conviction for robbery, and an enhancement for the use of a firearm,

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Petitioner was sentenced to serve 13 years and eight months in prison. People v. Arbee, No.

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A144931, 2016 Cal. App. Unpub. LEXIS 6057, *1 (Cal. App. 1st Dist., Aug. 16, 2016). His

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appeals to the California Court of Appeal and the California Supreme Court were denied. Id. at

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*18; People v. Arbee, No. S237228, 2016 Cal. LEXIS 9186, *1 (Cal., Nov. 9, 2016).
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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Legal Claims
As grounds for federal habeas relief, Petitioner asserts: (1) that the evidence was

United States District Court
Northern District of California

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insufficient to sustain the convictions, thus violating Due Process; (2) that the convictions were the

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product of a Confrontation Clause violation; (3) that the trial court’s failure to instruct the jury

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regarding lesser included offenses rendered the trial so fundamentally unfair as to violate Due

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Process; (4) that Due Process was denied by the admission at trial of Petitioner’s jailhouse phone

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conversations. 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

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attachments thereto, as well as 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

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a copy of this order on counsel for 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 the provisions of Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer, and serve on counsel for Petitioner a copy of all

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

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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 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 may file with the court and serve on counsel for Petitioner a reply within fourteen (14)

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days of receipt of any opposition.

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IT IS SO ORDERED.
Dated: March 23, 2018.

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United States District Court
Northern District of California

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ROBERT M ILLMAN
United States Magistrate Judge

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