Pullman v. Small

Filing 6

ORDER TO SHOW CAUSE, VACATING ORDER TO PAY FILING FEE AND NOTICE TO ATTORNEY. Signed by Judge Jeffrey S. White on 8/11/09. (jjo, COURT STAFF) (Filed on 8/11/2009)

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vs. LARRY SMALL, Warden, Respondent. MICHAEL DAVID PEREZ, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. C 09-0113 JSW (PR) ORDER TO SHOW CAUSE, VACATING ORDER TO PAY FILING FEE AND NOTICE TO ATTORNEY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

INTRODUCTION Petitioner, a prisoner of the State of California, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of his state court conviction. In an earlier order, this Court ordered Petitioner to pay the filing fee. However, due to an error in recording the payment, the Court was unaware that Petitioner had already paid the filing fee. Therefore, the Court's order to Petitioner to pay the fee within thirty days is vacated. In the Court's earlier order, Petitioner's motion for counsel filed by pro bono attorney David J. Pullman was denied (docket no. 5). However, since Attorney Pullman has already made an appearance on this matter, he must inform the Court, by filing a motion to withdraw as counsel within ten days, if he does not intend to continue to appear on this matter pro bono. If he does not intend to withdraw as counsel for Petitioner, he need not file anything with the Court and he will continue as attorney of record for Petitioner. This order directs Respondent to show cause why the petition should not be

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granted. BACKGROUND According to the petition, Petitioner was convicted of first degree murder, discharge of a firearm and being a felon in possession of a firearm in San Francisco County Superior Court in 2005. The trial court sentenced him to two terms of 25 years-to-life plus 2 years in state prison. Petitioner's appeal to the California Court of Appeal was denied and his petition for review in the California Supreme Court were denied in 2007. Petitioner later filed a collateral challenge to his conviction in the California Supreme Court which was denied in 2009. He filed the instant federal habeas petition in this Court on January 9, 2009. DISCUSSION I Standard of Review 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." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order 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. II Legal Claims

The petition raises the following ground for relief: 1) ineffective assistance of counsel; and, (2) the trial court violated Petitioner's rights to due process and confrontation by improperly limiting impeachment of a witness. Liberally construed, it
does not appear from the face of the petition that Petitioner is not entitled to relief on his claims. Accordingly, Respondent is ordered to respond to the petition as set forth below. CONCLUSION For the foregoing reasons and for good cause shown,

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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. The Clerk also shall serve a copy of this order on Petitioner. 2. Respondent shall file with the Court and serve on Petitioner, within sixty (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 thirty (30) days of the date the answer is filed. 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. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition within thirty (30) days of the date the motion is filed, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days the date the opposition is filed. 4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep

the Court informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the Court's orders in a timely 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). This order terminates Docket No. 3.
IT IS SO ORDERED. DATED: August 11, 2009 JEFFREY S. WHITE United States District Judge

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v. LARRY SMALL et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MICHAEL DAVID PEREZ, Plaintiff,

Case Number: CV09-00113 JSW CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 11, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Michael David Perez T90067 Calipatria State Prison Calipatria, CA 92233 Dated: August 11, 2009 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk