Brown v. The Attorney General of the State of California et al

Filing 9

ORDER TO SHOW CAUSE (Illston, Susan) (Filed on 3/20/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 NAPOLEON BROWN, 9 Petitioner, 10 No. C 11-0977 SI (pr) ORDER TO SHOW CAUSE v. United States District Court For the Northern District of California 11 ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; 12 MICHAEL HENNESSEY, San Francisco Sheriff, 13 14 Respondents. / 15 16 17 18 19 20 21 INTRODUCTION Napoleon Brown, a convicted prisoner currently housed at the San Francisco County Jail, filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Brown's first amended petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases. 22 23 24 25 26 27 28 BACKGROUND The first amended petition provides the following information: Brown was convicted of murder, four counts of robbery and carjacking. Several sentence enhancement allegations were found true. On April 11, 2006, Brown was sentenced to 44 years 4 months in prison. He states that his motion for new trial on the murder conviction was granted and that he "is pending resentencing in San Francisco County Superior Court." First Amended Petition, p. 2. Brown 1 appealed. The California Court of Appeal affirmed the decision granting the motion for a new 2 trial on the murder charge and affirmed the judgment as to the remaining convictions. The 3 appellate court also denied a habeas petition that had been filed by Brown. On October 28, 4 2009, the California Supreme Court denied his petition for review. Brown filed a petition for 5 writ of certiorari in the United States Supreme Court, which was denied on March 8, 2010. He 6 later filed unsuccessful petitions for writ of habeas corpus in the San Francisco County Superior 7 Court and in the California Supreme Court. 8 When this action was filed on March 2, 2011, it was assigned to Judge Fogel. Brown 9 sought and obtained a stay of the proceedings so that he could exhaust state court remedies as 10 to unexhausted claims. He later returned to this court, reported that he had exhausted state court 11 remedies, presented a first amended petition, and moved to reopen the action. By that point in 12 time, Judge Fogel had left the district to become the director of the Federal Judicial Center. 13 Judge Davila, as the San Jose Division General Duty Judge, granted the motion to reopen the 14 action and lifted the stay. Once reopened, the action was assigned to the undersigned. 15 Accordingly, all future filings should have the initials "SI" rather than "JF" at the end of the case 16 number, i.e., the case number is now "C 11-0977 SI (pr)." 17 18 DISCUSSION 19 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 20 custody pursuant to the judgment of a State court only on the ground that he is in custody in 21 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A 22 district court considering an application for a writ of habeas corpus shall "award the writ or issue 23 an order directing the respondent to show cause why the writ should not be granted, unless it 24 appears from the application that the applicant or person detained is not entitled thereto." 28 25 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 26 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. 27 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 28 2 1 The amended petition alleges the following claims: (1) the prosecutor improperly excused 2 five potential African-American jurors and excused one juror because of the juror's religion, 3 see Batson v. Kentucky, 476 U.S. 79 (1986); (2) the prosecutor violated Brown's Fifth, Sixth and 4 Fourteenth Amendment rights by using evidence of Brown's decision not to speak with police 5 on the advice of counsel as evidence of his guilt; (3) Brown's Sixth Amendment rights to 6 confrontation and to present a defense were violated by the trial court's limits on cross- 7 examination of officer Watts; (4) Brown's Sixth Amendment right to confront witnesses and 8 Fourteenth Amendment right to due process were violated by the admission of a hearsay 9 statement the victim made to police before she died; (5) "the court's confusing answer to the 10 jury's question deprived him of his right to have the jury decide each element of the carjacking 11 charge," First Amended Petition, p. 5; (6) one juror's comment to other jurors offering her expert 12 opinion as a nurse who worked with dying patients "deprived Petitioner of his federal 13 constitutional 'rights to confrontation, cross-examination and assistance of counsel embodied in 14 the Sixth Amendment,'" id.; (7) the supplemental jury instructions regarding the gun 15 enhancement created an unconstitutional mandatory presumption that relieved the state of its 16 burden to prove an element of the enhancements beyond a reasonable doubt; (8) Brown received 17 ineffective assistance of counsel in the four ways specified at pages 5-6 of the first amended 18 petition; and (9) the prosecutor failed to disclose material exculpatory evidence regarding police 19 officers who testified against Brown. Liberally construed, the claims appear to be cognizable 20 in a federal habeas action. 21 22 CONCLUSION 23 For the foregoing reasons, 24 1. 25 26 27 The first amended petition states cognizable claims for habeas relief and warrants a response. 2. The clerk shall serve by certified mail a copy of this order, the petition, first amended petition and all attachments thereto upon respondent and respondent's attorney, the 28 3 1 Attorney General of the State of California. The clerk shall also serve a copy of this order on 2 petitioner. 3 3. Respondent must file and serve upon petitioner, on or before June 1, 2012, an 4 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, 5 showing cause why a writ of habeas corpus should not be issued. Respondent must file with the 6 answer a copy of all portions of the court proceedings that have been previously transcribed and 7 that are relevant to a determination of the issues presented by the petition. 8 9 10 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 6, 2012. 5. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep 11 the court informed of any change of address and must comply with the court's orders in a timely 12 fashion. 13 14 15 16 6. Petitioner is cautioned that he must include the case name and case number for this case on any document he submits to this court for consideration in this case. IT IS SO ORDERED. DATED: March 20, 2012 SUSAN ILLSTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4

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