Sanders v. Cate et al

Filing 8

ORDER TO SHOW CAUSE: Answer to be filed by 6/3/2011; Traverse to be filed by 7/8/2011; Signed by Judge Marilyn Hall Patel on 3/28/2011. (Attachments: # 1 CertServ)(awb, COURT STAFF) (Filed on 3/29/2011)

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Sanders v. Cate et al Doc. 8 1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAVID DARRELL SANDERS, Petitioner, v. DERRAL ADAMS, warden, Respondent. / No. C 10-891 MHP (pr) ORDER TO SHOW CAUSE INTRODUCTION David Darrell Sanders, an inmate at Pelican Bay State Prison, filed this action for writ of habeas corpus pursuant to 28 U.S.C. 2254 to challenge a conviction in Alameda County Superior Court for attempted extortion. The court reviewed his petition and dismissed it with leave to amend. Sanders filed an "amended petition" that alleges only one of the two claims that were identified as deficient. He also sent a letter indicating an intent to abandon the third claim. (Docket # 5.) The court construes the amended petition to be an amendment to the original petition rather than to supersede the original petition because both must be read to find the two claims Sanders wishes to present in this federal habeas action. DISCUSSION This court may entertain a petition for 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). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A district court considering an application for a writ of habeas corpus 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." 28 U.S.C. 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The original petition (docket # 1) alleged that Sanders' right to due process was violated because the evidence was insufficient to support the verdict. The amended petition (docket # 6) alleged that he received ineffective assistance of trial counsel in that counsel (a) failed to investigate and prepare for trial (e.g., failed to argue that there was insufficient evidence, failed to move to strike Sanders' prior convictions, and failed to argue that there was not probable case); (b) failed to keep the client reasonably informed of the progress of the case, trial strategy and the existence of attorney conflicts; and (c) failed to object to a particular jury instruction about the use of force. Liberally construed, these two claims are cognizable in a federal habeas action and warrant a response. Petitioner's claim in the original petition that the Boykin-Tahl advisement error in his earlier case resulted in a due process violation is dismissed. CONCLUSION For the foregoing reasons, 1. The petition as amended by the amended petition states cognizable claims for habeas relief. Respondent must respond to the due process and ineffective assistance of counsel claims. 2. The clerk shall serve by certified mail a copy of this order, the order of dismissal with leave to amend, the petition, amended petition, and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. 3. Respondent must file and serve upon petitioner, on or before June 3, 2011, 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 issued. Respondent must file with 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the answer a copy of all portions of the state court record that previously have been transcribed and that are relevant to a determination of the issues presented by the petition. 4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent on or before July 8, 2011. 5. Petitioner is responsible for prosecuting this case. He must keep the court informed of any change of address and 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). IT IS SO ORDERED. DATED: March 28, 2011 Marilyn Hall Patel United States District Judge 3

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