Cape v. Director of Corrections

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge William Alsup on 12/22/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 12/22/2010)

Cape v. Director of Corrections

Doc. 2

1 2 3 4 5 6 7 8 9 10 ANTONY SCOTT CAPE, Petitioner, v. DIRECTOR OF CORRECTIONS, Respondent. / INTRODUCTION Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He has paid the filing fee. STATEMENT In 2008 petitioner was convicted in Lake County Superior Court for kidnaping, robbery, assault with a deadly weapon, making criminal threats, and assault by means of force likely to produce great bodily injury. The trial court sentenced him to a term of thirteen years in state prison. The California Court of Appeal affirmed the judgment, and the California Supreme Court denied a petition for review. ANALYSIS A. STANDARD OF REVIEW 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 No. C 10-5688 WHA (PR) ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Rule 2(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. "`[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). B. LEGAL CLAIMS As grounds for federal habeas relief, petitioner claims that (1) the trial court violated his right to due process by failing to give an instruction on accomplice liability; (2) his sentence was excessive, in violation of his rights under the Sixth Amendment; and (3) he received ineffective assistance of counsel at trial. Petitioner's claims, when liberally construed, are cognizable. CONCLUSION 1. The clerk shall mail a copy of this order and the petition with all attachments to the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on the petitioner. 2. Respondent shall file with the court and serve on petitioner, within ninety 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 based on the claims found cognizable herein. 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 days of the date the answer is filed. 2

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3. Respondent may file, within ninety days, 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 days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within fifteen days of the date any opposition is filed. 4. 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. Petitioner 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). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). IT IS SO ORDERED.

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Dated: December

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, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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