Redic v. Marshall

Filing 37

ORDER REOPENING CASE; ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 10/25/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 10/26/2011)

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*E-Filed 10/26/11*

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UNITED STATES DISTRICT COURT

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United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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LARRY REDIC,
Petitioner,

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ORDER REOPENING ACTION;

v.

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No. C 08-5010 RS (PR)

ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

JOHN MARSHALL, Warden,
Respondent.

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INTRODUCTION

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This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28

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U.S.C. § 2254. The action was dismissed because petitioner failed to comply with a Court

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order. Petitioner having filed the necessary documents, the action is hereby REOPENED.

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The order of dismissal (Docket No. 19), and the judgment (Docket No. 20), are hereby

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VACATED. The Clerk is directed to reopen the action. The petition is now before the Court

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for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254

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Cases.

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No. C 08-5010 RS (PR)
ORDER DISMISSING PETITION

DISCUSSION

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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).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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United States District Court
For the Northern District of California

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
According to the petition, petitioner was convicted in the Alameda County Superior

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Court for false imprisonment, kidnapping, and multiple sex offenses. As grounds for federal

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habeas relief, petitioner alleges the following claims: (1) there was insufficient evidence to

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support his rape convictions; (2) his due process right to fair notice was violated when he

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was not informed of charges that appeared in the charging document; (3) defense counsel

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rendered ineffective assistance; (4) the imposition of consecutive sentences violated his Sixth

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Amendment rights under Cunningham v. California, 549 U.S. 270 (2007); (5) evidence,

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including prior crimes evidence, was improperly admitted and caused prejudice; (6) there

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was prosecutorial misconduct; (7) the jury was not impartial; (8) a witness was “aiding and

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abetting”; (9) a witness perjured herself; (10) CALJIC No. 2.21.2 was given in error to the

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jury; (11) the trial court failed to instruct on a lesser included offense; (12) his appellate

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attorney rendered ineffective assistance by failing to raise certain claims on appeal; (13) his

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sentence violates the Eighth Amendment; (14) his claims are not procedurally defaulted;

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(15) petitioner suffers from a disability because of his drug use; (16) there was some Sixth

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Amendment charging error in the indictment; (17) the state court’s timeliness rule is unclear.1

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These 16 claims were consolidated from 29 claims listed in the petition.
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No. C 08-5010 RS (PR)
ORDER DISMISSING PETITION

The petition will be dismissed with leave to amend. Claim (4) regarding the

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imposition of concurrent sentences is DISMISSED without leave to amend. “The decision

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whether to impose sentences concurrently or consecutively is a matter of state criminal

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procedure and is not within the purview of federal habeas corpus.” Cacoperdo v.

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Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). More specifically, Sixth Amendment jury

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trial protections do not apply to a trial court’s decision to impose concurrent or consecutive

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sentences. See Oregon v. Ice, 129 S. Ct. 711, 714–15 (2009). Claim (8) is DISMISSED with

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leave to amend. Petitioner has not clearly explained what he means by aiding and abetting

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United States District Court
For the Northern District of California

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and how that is relevant to the legality or duration of his confinement. Claim (9) is

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DISMISSED with leave to amend. Petitioner must make it clear whether this claim is for

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ineffective assistance of counsel or for prosecutorial misconduct, or both. Claim (11) is

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DISMISSED with leave to amend. The failure of a state trial court to instruct on lesser

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included offenses in a non-capital case does not present a federal constitutional claim. See

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Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). However, “the defendant’s right to

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adequate jury instructions on his or her theory of the case might, in some cases, constitute an

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exception to the general rule.” Id., 219 F.3d at 929 (citing Bashor v. Risley, 730 F.2d at

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1240). Solis suggests that there must be substantial evidence to warrant the instruction on the

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lesser included offense. Id., 219 F.3d 929–30. If petitioner realleges this claim, he must give

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specific facts showing that there was substantial evidence to warrant the instruction. Claim

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(12) is DISMISSED with leave to amend. Petitioner must state exactly which claims

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appellate counsel failed to raise on appeal and how the failure to raise those claims resulted

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in ineffective assistance. Claim (14) is DISMISSED without leave to amend as it does not

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state a claim for federal habeas relief. Petitioner may argue in his amended petition or his

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traverse that his claims are not procedurally defaulted, but such an assertion does not state an

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independent claim for relief. Claim (15) is DISMISSED with leave to amend. Petitioner has

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not shown how this claim relates to the legality or duration of his confinement. Claim (16) is

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DISMISSED with leave to amend. It is not clear what petitioner means by this claim. Claim

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No. C 08-5010 RS (PR)
ORDER DISMISSING PETITION

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(17) is DISMISSED without leave to amend as it does not state a claim for relief.
Accordingly, the petition is DISMISSED with leave to amend. Petitioner shall file an

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amended petition within 30 days from the date this order is filed. The first amended petition

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must include the caption and civil case number used in this order (08-5010 RS (PR)) and the

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words SECOND AMENDED PETITION on the first page. Because an amended petition

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completely replaces the previous petitions, petitioner must include in his first amended

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petition all the claims he wishes to present. Petitioner may not incorporate material from the

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prior petition by reference. Failure to file an amended petition in accordance with this order

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United States District Court
For the Northern District of California

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will result in dismissal of this action for failure to prosecute under Federal Rule of Civil

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Procedure 41(b).
Petitioner’s motion to amend the petition (Docket No. 22), and his motion to reopen

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the action (Docket No. 23) are DENIED as moot. His motion for “due diligence

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documentation” (Docket No. 25), and his motion “in support of state court impediments”

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(Docket No. 27), are DENIED because they are not comprehensible. Petitioner may refile

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these motions with his amended petition if he clarifies exactly what he is asking the Court to

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do. The Clerk shall terminate Docket Nos. 22, 23, 25 & 27.

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IT IS SO ORDERED.
DATED: October 25, 2011
RICHARD SEEBORG
United States District Judge

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No. C 08-5010 RS (PR)
ORDER DISMISSING PETITION