Balbuena v. Biter et al

Filing 3

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Richard Seeborg on 5/11/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 5/11/2011)

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1 2 3 *E-Filed 5/11/11* 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 11 12 ALEXANDER BALBUENA, Petitioner, 13 14 No. C 11-0228 RS (PR) ORDER TO SHOW CAUSE; v. GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS MARTIN BITER, and THE CALIFORNIA ATTORNEY 16 GENERAL, 15 17 Respondents. / 18 19 20 INTRODUCTION This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se 21 state prisoner. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243 22 and Rule 4 of the Rules Governing Section 2254 Cases. 23 BACKGROUND 24 According to the petition, in 2008, a Contra Costa Superior Court jury found 25 petitioner guilty of first degree murder. Consequent to the verdict, petitioner was sentenced 26 to a total term of 82 years-to-life in state prison. The instant petition was filed after 27 petitioner was denied relief on direct state review. It appears that petitioner did not seek state 28 No. C 11-0228 RS (PR) ORDER TO SHOW CAUSE 1 collateral review. DISCUSSION 2 3 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 A district court considering an application for a writ of habeas corpus shall “award the writ 7 or issue an order directing the respondent to show cause why the writ should not be granted, 8 unless it appears from the application that the applicant or person detained is not entitled 9 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 10 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 11 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 12 As grounds for federal habeas relief, petitioner claims that (1) the trial court violated 13 his Fifth Amendment right against self-incrimination when it failed to suppress his 14 confession; (2) the trial court violated his right to due process by giving improper jury 15 instructions;1 (3) defense counsel rendered ineffective assistance; and (4) the trial court 16 violated his right to be present at all critical stages of the prosecution. Petitioner alleges both 17 state and federal constitutional claims. Petitioner’s state constitutional claims are 18 DISMISSED without leave to amend, federal habeas relief being unavailable for violations 19 of state law or for alleged error in the interpretation or application of state law. See 20 Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011). Liberally construed, claims 1–4 above, 21 insofar as they allege violations of federal law, appear to be cognizable in a federal habeas 22 action. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED, good 23 cause appearing therefor. 24 25 26 27 1 This is a consolidation of Claims 2 & 5 listed in the petition. 28 2 No. C 11-0228 RS (PR) ORDER TO SHOW CAUSE CONCLUSION 1 2 1. The Clerk shall serve by certified mail a copy of this order, the petition and all 3 attachments thereto, on respondents and respondents’ counsel, the Attorney General for the 4 State of California. The Clerk shall also serve a copy of this order on petitioner. 5 2. Respondents shall file with the Court and serve on petitioner, within ninety (90) 6 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 7 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 8 be granted based on petitioner’s cognizable claims. Respondents shall file with the answer 9 and serve on petitioner a copy of all portions of the state trial record that previously have 10 been transcribed and that are relevant to a determination of the issues presented by the 11 petition. 12 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 13 with the Court and serving it on respondents’ counsel within thirty (30) days of the date the 14 answer is filed. 15 4. In lieu of an answer, respondents may file, within ninety (90) days of the date this 16 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 17 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondents file 18 such a motion, petitioner shall file with the Court and serve on respondents an opposition or 19 statement of non-opposition within thirty (30) days of the date the motion is filed, and 20 respondents shall file with the Court and serve on petitioner a reply within fifteen (15) days 21 of the date any opposition is filed. 22 23 24 5. Petitioner is reminded that all communications with the Court must be served on respondents by mailing a true copy of the document to respondents’ counsel. 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 25 Court and respondents informed of any change of address and must comply with the Court’s 26 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 27 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 28 3 No. C 11-0228 RS (PR) ORDER TO SHOW CAUSE 1 2 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. 3 8. Petitioner’s motion to proceed in forma pauperis is GRANTED. 4 9. This order terminates Docket No. 2. 5 IT IS SO ORDERED. 6 DATED: May 11, 2011 RICHARD SEEBORG United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 No. C 11-0228 RS (PR) ORDER TO SHOW CAUSE

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