LaFarga v. Martel

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Thelton E. Henderson on 04/03/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 4/3/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I On January 28, 1994, Petitioner was sentenced to 44 years in state prison following his convictions for various crimes including kidnapping, forcible rape, forcible sexual penetration, battery, assault with a deadly weapon, false imprisonment, and attempted lewd and lascivious acts, and for true findings on various Petitioner, a state prisoner incarcerated at Mule Creek State Prison in Ione, California, has filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Sonoma County Superior Court. v. M. MARTEL, WARDEN, Respondent. / MARK LAFARGA, Petitioner, ORDER TO SHOW CAUSE No C-08-4420 TEH (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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sentencing enhancements.

Doc. # 1 at 2.

On August 13, 2008, the California Supreme Court denied his Petition for Writ of Habeas Corpus.

II This Court may entertain a Petition for a Writ of Habeas Corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." U.S.C. § 2254(a). It shall "award the writ or issue an order 28

directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243.

Petitioner seeks federal habeas corpus relief on the grounds that: (1) he was denied his Sixth Amendment right to the effective assistance of counsel; and (2) because his convictions exposed him only to the middle term sentence as to each crime, imposition of the upper term sentence, without his admission of any aggravating facts or waiver of jury trial rights, violated his Sixth and Fourteenth Amendment rights under Cunningham v. California, 549 U.S. 270, 293 (2007) (holding that California's Determinate Sentencing Law violates the Sixth Amendment because it authorizes the judge, not the jury, to find the facts permitting an upper term sentence); see also Blakely v. Washington, 542 U.S. 296, 310 (2004) ("When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding."). 2

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Liberally construed, Petitioner's claims appear cognizable under § 2254 and merit an Answer from Respondent. See Zichko v.

Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally).

III For the foregoing reasons and for good cause shown, 1. The Clerk shall serve by certified mail a copy of

this Order and the Petition, and all attachments thereto, on Respondent and Respondent's attorney, the Attorney General of the State of California. Order on Petitioner. 2. Respondent shall file with the Court and serve on The Clerk also shall serve a copy of this

Petitioner, within 60 days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a Writ of Habeas Corpus should not be granted. Respondent shall file with the Answer and serve on

Petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the Petition. 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 30 days of his receipt of the Answer. 3. In lieu of an Answer, Respondent may file a Motion to

Dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the 3

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Court and serve on Respondent an Opposition or Statement of Non-Opposition within 30 days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a Reply within 15 days of receipt of any Opposition. 4. Petitioner is reminded that all communications with

the Court must be served on Respondent by mailing a true copy of the document to Respondent's counsel. Petitioner also must keep the

Court and all parties informed of any change of address.

IT IS SO ORDERED.

DATED

04/03/09 THELTON E. HENDERSON United States District Judge

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