Hafelfinger v. Frauenheim et al

Filing 4

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 5/11/2018. Signed by Judge Robert M. Illman on 3/12/2018. (rmilc1, COURT STAFF) (Filed on 3/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISON 7 8 DEREK A. HAFELINGER, Case No. 18-cv-0879-RMI (PR) Petitioner, 9 v. ORDER FOR RESPONDENT TO SHOW CAUSE 10 11 WARDEN SCOTT FRAUENHEIM, United States District Court Northern District of California Respondent. 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 14 15 to 28 U.S.C. § 2254. Petitioner was convicted in Alameda County, so venue is proper here. See 16 28 U.S.C. § 2241(d). Petitioner has paid the filing fee and consented to the jurisdiction of a 17 Magistrate Judge. BACKGROUND 18 Petitioner was convicted of multiple counts of oral copulation with, and the continuous 19 20 sexual abuse of, his step-daughter. People v. Hafelfinger, No. A148236, 2017 WL 3124435, at *1 21 (Cal. Ct. App. July 24, 2017). He was sentenced to twenty-one years to life in prison. Id. His 22 appeals to the California Court of Appeal and California Supreme Court were denied. Petition at 23 2-3. DISCUSSION 24 25 Standard of Review 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 28 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 1 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 2 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 3 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 4 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 5 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ 6 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 7 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 8 688, 689 (1st Cir. 1970)). 9 10 Legal Claims As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erred in United States District Court Northern District of California 11 admitting evidence of images of child pornography because they were obtained in an unlawful 12 search; (2) the trial court abused its discretion in admitting the images and petitioner received 13 ineffective assistance of counsel for this claim; (3) it was an error to admit evidence that petitioner 14 watched adult pornography on the family computer and petitioner received ineffective assistance 15 of counsel for this claim; (4) it was an error to admit evidence that the victim saw petitioner throw 16 a knife across the kitchen and petitioner received ineffective assistance of counsel for this claim; 17 (5) trial counsel was ineffective for failing to seek permission to impeach the victim; (6) the trial 18 court erred in refusing to allow petitioner to cross-examine the victim cornering an alternate 19 source of her knowledge of sex acts; (7) the trial court erred in denying petitioner’s motion for a 20 new trial and petitioner received ineffective assistance of counsel for this claim; and (8) the 21 cumulative error of the above claims requires reversal. Liberally construed these claims are 22 sufficient to require a response. CONCLUSION 23 24 1. The clerk shall serve by regular mail a copy of this order, the petition and all 25 attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and 26 respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a 27 copy of this order on petitioner. 28 2. Respondent shall file with the court and serve on petitioner, within fifty-six (56) days of 2 1 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 2 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 3 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 4 trial record that have been transcribed previously and that are relevant to a determination of the 5 issues presented by the petition. 6 7 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. 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as 9 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 10 If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If 11 United States District Court Northern District of California 8 a motion is filed, petitioner shall file with the court and serve on respondent an opposition or 12 statement of non-opposition within twenty-eight (28) days of receipt of the motion, and 13 respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of 14 receipt of any opposition. 15 4. Petitioner is reminded that all communications with the court must be served on 16 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 17 the court informed of any change of address and must comply with the court's orders in a timely 18 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 19 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 20 1997) (Rule 41(b) applicable in habeas cases). 21 22 IT IS SO ORDERED. Dated: March 12, 2018 ________________________ ROBERT M. ILLMAN United States Magistrate Judge 23 24 25 26 27 28 3

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