Hill v. State of California

Filing 23

ORDER TO SHOW CAUSE. Habeas Answer due by 1/23/2012. Signed by Judge Thelton E. Henderson on 11/21/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 11/22/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 No. C-09-3147 TEH (PR) CHAZARUS HILL, Sr., 12 Petitioner, 13 v. 14 MATTHEW CATE, Secretary, 15 ORDER TO SHOW CAUSE Respondent. 16 / 17 18 Petitioner, a state prisoner incarcerated at the Sierra 19 Conservation Center in Jamestown, California, filed a pro se amended 20 petition for a writ of habeas corpus under 28 U.S.C. § 2254 21 challenging a judgment of conviction from Alameda County Superior 22 Court. 23 Respondent filed a motion to dismiss the amended petition on the 24 ground that Petitioner failed to exhaust two claims contained 25 therein. 26 Petitioner filed a motion to stay the proceedings to allow him to 27 return to state court to exhaust his unexhausted claims. 28 The Court granted Petitioner’s motion to stay and closed the case Doc. #7. After the Court issued an order to show cause, Doc. ## 8 & 11. After Respondent moved to dismiss, Doc. #12. 1 administratively. 2 in state court, see Doc. #14 at 2, the Court granted his motion to 3 lift the stay and reopened the action. 4 2011, Petitioner filed the instant second amended petition 5 containing all exhausted claims. Doc. #13. After Petitioner exhausted all claims Doc. #21. On October 3, Doc. #22. 6 7 I 8 9 Petitioner was sentenced to twenty-six years to life in state prison following his convictions of first degree murder, United States District Court For the Northern District of California 10 assault on a child causing death and felony child abuse involving 11 the infliction of great bodily injury on a child under the age of 12 five. 13 judgment in an unpublished opinion, People v. Hill, No. A117040, 14 2008 WL 2130476 (Cal. Ct. App. May 21, 2008), and the California 15 Supreme Court denied his petition for review. 16 2010, the California Supreme Court denied an exhaustion petition 17 filed there. Doc. #22 at 2. The California Court of Appeal affirmed the Id. On December 1, Doc. #14 at 2. 18 19 20 II This Court may entertain a petition for a writ of habeas 21 corpus “in behalf of a person in custody pursuant to the judgment of 22 a State court only on the ground that he is in custody in violation 23 of the Constitution or laws or treaties of the United States.” 24 28 U.S.C. § 2254(a). 25 directing the respondent to show cause why the writ should not be 26 granted, unless it appears from the application that the applicant 27 or person detained is not entitled thereto.” 28 It shall “award the writ or issue an order 2 28 U.S.C. § 2243. 1 Petitioner seeks federal habeas corpus relief by alleging 2 various claims, including there was insufficient evidence to support 3 his convictions, the trial court improperly removed a juror during 4 trial, and the state improperly calculated his time credits. 5 #22. 6 28 U.S.C. § 2254 and merit an Answer from Respondent. 7 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must 8 construe pro se petitions for writs of habeas corpus liberally). Doc. Liberally construed, these claims appear cognizable under See Zichko v. 9 United States District Court For the Northern District of California 10 III 11 For the foregoing reasons and for good cause shown, 12 1. The Clerk shall serve by certified mail a copy of 13 this Order and the second amended petition (Doc. #22), and all 14 attachments thereto, on Respondent and Respondent’s attorney, the 15 Attorney General of the State of California. 16 serve a copy of this Order on Petitioner. 17 2. The Clerk also shall Respondent shall file with the Court and serve on 18 Petitioner, within sixty (60) days of the issuance of this Order, an 19 Answer conforming in all respects to Rule 5 of the Rules Governing 20 Section 2254 Cases, showing cause why a writ of habeas corpus should 21 not be granted. 22 Petitioner a copy of all portions of the state trial record that 23 have been transcribed previously and that are relevant to a 24 determination of the issues presented in the second amended 25 petition. 26 27 28 Respondent shall file with the Answer and serve on If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent 3 1 within thirty (30) days of his receipt of the Answer. 2 3. In lieu of an Answer, Respondent may file a Motion to 3 Dismiss on procedural grounds, as set forth in the Advisory 4 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 5 If Respondent files such a motion, Petitioner shall file with the 6 Court and serve on Respondent an Opposition or Statement of 7 Non-Opposition within thirty (30) days of receipt of the motion, and 8 Respondent shall file with the Court and serve on Petitioner a Reply 9 within fifteen (15) days of receipt of any Opposition. United States District Court For the Northern District of California 10 4. Petitioner is reminded that all communications with 11 the Court must be served on Respondent by mailing a true copy of the 12 document to Respondent’s counsel. 13 Court and all parties informed of any change of address. Petitioner also must keep the 14 15 IT IS SO ORDERED. 16 17 18 DATED 11/21/2011 THELTON E. HENDERSON United States District Judge 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\TEH\HC.09\Hill-09-3147-osc-post-exhaustion.wpd 4

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