Redic v. Marshall

Filing 52

ORDER TO SHOW CAUSE. Signed by Judge Richard Seeborg on 6/26/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 6/26/2012)

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*E-Filed 6/26/12*

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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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No. C 08-5010 RS (PR)
ORDER TO SHOW CAUSE

v.
TERRI L. GONZALES, 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 second amended petition is now before the Court for review pursuant to

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28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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BACKGROUND
According to the petition, in 2006, an Alameda County Superior Court jury convicted

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petitioner of false imprisonment, kidnapping, and multiple sex offenses. He does not state

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the length of his prison sentence.

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No. C 08-5010 RS (PR)
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DISCUSSION
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).
As grounds for federal habeas relief, petitioner claims: (1) there was insufficient

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evidence to support one of his four convictions which resulted in the imposition of a full-

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term consecutive sentence; (2) the charging documents were faulty, in violation of due

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process; (3) the state appellate court’s ruling was in error; (4) there was prosecutorial

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misconduct; (5) defense and appellate counsel rendered ineffective assistance; (6) there was

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cumulative error; (7) trial court failed to issue an instruction on a lesser included offense; and

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(8) the jury was biased against him because of his drug addiction. When liberally construed,

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these claims appear to state claims cognizable on federal habeas review.

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CONCLUSION
1. The Clerk shall serve by certified mail a copy of this order, the petition and all

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attachments thereto, on respondent and respondent’s counsel, the Attorney General for the

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State of California. The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner, within ninety (90)

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days of the date this order is filed, an answer conforming in all respects to Rule 5 of the

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

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be granted based on petitioner’s cognizable claims. Respondent shall file with the answer

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and serve on petitioner a copy of all portions of the state trial record that previously have

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No. C 08-5010 RS (PR)
ORDER TO SHOW CAUSE

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been transcribed and that are relevant to a determination of the issues presented by the

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petition.
3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within ninety (90) days of the date this
order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

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United States District Court
For the Northern District of California

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such a motion, petitioner shall file with the Court and serve on respondent an opposition or

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statement of non-opposition within thirty (30) days of the date the motion is filed, and

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respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of

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the date any opposition is filed.

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5. 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.

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6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.

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8. Petitioner’s motion to proceed in forma pauperis (Docket Nos. 46 and 51) is

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DENIED as moot, the Court having granted petitioner in forma pauperis status in 2008.

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(Docket No. 5.)

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No. C 08-5010 RS (PR)
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9. Petitioner’s motion for the appointment of counsel (Docket No. 47) is DENIED on
the same grounds as his prior motion for counsel was denied (Docket No. 19).

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10. The Clerk shall terminate Docket Nos. 46, 47 and 51.

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IT IS SO ORDERED.

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DATED: June 26, 2012
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 08-5010 RS (PR)
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