Edgin v. Covello

Filing 11

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 1/15/2021; and ORDER GRANTING 7 Motion to Proceed In Forma Pauperis. Signed by Judge Robert M. Illman on 11/16/2020. (rmilc2S, COURT STAFF) (Filed on 11/16/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) Modified on 11/16/2020 (rmilc2S, COURT STAFF).

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Case 1:20-cv-07565-RMI Document 11 Filed 11/16/20 Page 1 of 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARREL EDGIN, Petitioner, 8 9 10 United States District Court Northern District of California 11 Case No. 20-cv-07565-RMI ORDER FOR RESPONDENT TO SHOW CAUSE v. Re: Dkt. No. 7 PATRICK COVELLO, Respondent. 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 14 to 28 U.S.C. § 2254. Petitioner was convicted in Santa Clara County, so venue is proper here. See 15 28 U.S.C. § 2241(d). Petitioner has filed a motion to proceed in forma pauperis and has consented 16 to the jurisdiction of a Magistrate Judge (dkts. 7, 8). 17 BACKGROUND 18 Petitioner was convicted of having sexual intercourse with a child ten years of age or 19 younger, lewd or lascivious act on a child under 14 and of continuous sexual abuse of a child 20 under 14. People v. Edgin, No. H043305, 2018 WL 3031767, at *1 (Cal. Ct. App. June 9, 2018). 21 Petitioner was sentenced to 50 years to life in state prison. Id. The California Court of Appeal 22 affirmed the judgment. Id. The California Supreme Court denied review. Pet. (dkt. 6) at 3. 23 Petitioner’s state habeas petitions were denied. Id. at 3-4 24 DISCUSSION 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. Case 1:20-cv-07565-RMI Document 11 Filed 11/16/20 Page 2 of 3 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 must] state the facts 5 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 6 “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real 7 possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 8 431 F.2d 688, 689 (1st Cir. 1970)). 9 10 Legal Claims As grounds for federal habeas relief petitioner asserts that: (1) he received ineffective United States District Court Northern District of California 11 assistance of counsel; and (2) there was insufficient evidence to support the convictions. Liberally 12 construed, these claims are sufficient to require a response. CONCLUSION 13 14 1. The motion to proceed in forma pauperis (dkt. 7) is GRANTED. The Clerk of Court 15 shall serve, by electronic mail, a copy of this order and a Magistrate Judge Jurisdiction consent 16 form on the Attorney General of the State of California at SFAWTParalegals@doj.ca.gov. The 17 Clerk also shall serve a copy of this order on Petitioner by regular mail. Respondent can view the 18 Petition on the electronic docket (dkt. 6). 19 2. Respondent shall file with the court and serve on Petitioner, within fifty-six (56) days of 20 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 21 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 22 Respondent shall file with the Answer and serve on Petitioner a copy of all portions of the state 23 trial record that have been transcribed previously and that are relevant to a determination of the 24 issues presented by the Petition. 25 26 27 28 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 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 2 Case 1:20-cv-07565-RMI Document 11 Filed 11/16/20 Page 3 of 3 1 If Respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. 2 If a motion is filed, Petitioner shall file with the court and serve on Respondent an opposition or 3 statement of non-opposition within twenty-eight (28) days of receipt of the motion, and 4 Respondent shall file with the court and serve on Petitioner a reply within fourteen (14) days of 5 receipt of any opposition. 6 4. Petitioner is reminded that all communications with the court must be served on 7 Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must keep 8 the court informed of any change of address and must comply with the court’s orders in a timely 9 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 11 United States District Court Northern District of California 10 1997) (Rule 41(b) applicable in habeas cases). 12 13 IT IS SO ORDERED. Dated: November 16, 2020 14 15 ROBERT M. ILLMAN United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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