Garcia v. Swarthout

Filing 6

ORDER TO SHOW CAUSE; DIRECTING PETITIONER TO FILE SIGNATURE PAGE. Signed by Judge Thelton E. Henderson on 01/31/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 2/1/2012)

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-11-1188 TEH (PR)

ROBERT ROY GARCIA,

12

Petitioner,

13

v.

14

GARY SWARTHOUT, Warden,

15
16

ORDER TO SHOW CAUSE; DIRECTING
PETITIONER TO FILE SIGNATURE
PAGE

Respondent.
/

17
18

Petitioner has filed a pro se Petition for a Writ of

19

Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of

20

conviction from Sonoma County Superior Court.

21

petition was a “mixed” petition, i.e., one that included both

22

exhausted and unexhausted claims.

23

mixed petition with leave to amend and ordered Petitioner to choose

24

one of the following three options: (1) dismiss the unexhausted

25

claim and go forward in this action with only the exhausted claims;

26

or (2) dismiss this action and return to state court to exhaust all

27

claims before filing a new federal petition presenting all of his

28

claims; or (3) move to stay these proceedings while he exhausts his

Doc. #1.

The

The Court therefore dismissed the

1

unexhausted claims in the California Supreme Court.

2

Doc. #4.

Petitioner has filed a notice of election and has opted to

3

drop his unexhausted claim and proceed only with the exhausted

4

claims.

Doc. #5.

5
6

I

7

According to the Petition, Petitioner was sentenced in

8

January 2009 to eight years and four months in state prison

9

following his convictions of two counts of assault with a deadly

United States District Court
For the Northern District of California

10

weapon and other crimes.

11

conviction relief in the state superior and appellate courts until

12

the California Supreme Court denied his final petition on August 11,

13

2010.

14

Habeas Corpus followed.

Doc. #1 at 44.

Doc. #1 at 2–3.

Petitioner sought post-

The instant federal Petition for a Writ of

15
16
17

II
This Court may entertain a petition for a writ of habeas

18

corpus “in behalf of a person in custody pursuant to the judgment of

19

a State court only on the ground that he is in custody in violation

20

of the Constitution or laws or treaties of the United States.”

21

U.S.C. § 2254(a).

22

directing the respondent to show cause why the writ should not be

23

granted, unless it appears from the application that the applicant

24

or person detained is not entitled thereto.”

25

It shall “award the writ or issue an order

Id. § 2243.

Petitioner seeks federal habeas corpus relief by alleging

26

that: (1) trial counsel was ineffective during the trial and

27

sentencing proceedings; (2) there was insufficient evidence to

28

28

2

1

support Petitioner’s convictions; (3) the prosecutor committed

2

misconduct and engaged in selective prosecution; (4) Petitioner was

3

denied his right to present a defense; (5) Petitioner was denied his

4

right to proper notice of the charged strike allegation; and (6) the

5

trial court was biased against Petitioner by failing to instruct the

6

jury on certain lesser included offenses.

7

Liberally construed, Petitioner’s claims appear cognizable

8

under 28 U.S.C. § 2254 and merit an Answer from Respondent.

9

Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts

United States District Court
For the Northern District of California

10

must construe pro se petitions for writs of habeas corpus

11

See

liberally).

12

Petitioner failed to sign his petition.

Doc. #1 at 7.

13

must file a signed signature page for his Petitioner no later than

14

February 24, 2012.

15

He

him for him to sign and return to the court.

A copy of the signature page has been mailed to

16
17

III

18

In Petitioner’s most recent filing, he informed the Court

19

that he is no longer incarcerated, and is currently out on parole.

20

Doc. #5.

21

parties informed of any change of address.

22

with the Court a document titled “Notice of Change of Address” and

23

listing the address at where he would like to receive the documents

24

filed in this case.

25

//

26

//

27

//

28

Petitioner is reminded that he must keep the Court and all

3

He may do so by filing

1

IV

2

For the foregoing reasons and for good cause shown,

3

1.

The Clerk shall serve by certified mail a copy of this

4

Order and the Petition, and all attachments thereto (i.e., Doc. #1),

5

on Respondent and Respondent’s attorney, the Attorney General of the

6

State of California.

7

Order on Petitioner to the address on file with the Court, and to

8

the return address listed on Petitioner’s most recent filing: 954

9

Baxter Ave., Sonoma, CA 95476.

United States District Court
For the Northern District of California

10

2.

The Clerk also shall serve a copy of this

Respondent shall file with the Court and serve on

11

Petitioner, within sixty (60) days of the issuance of this Order, an

12

Answer conforming in all respects to Rule 5 of the Rules Governing

13

Section 2254 Cases, showing cause why a writ of habeas corpus should

14

not be granted.

15

Petitioner a copy of all portions of the state trial record that

16

have been transcribed previously and that are relevant to a

17

determination of the issues presented by the Petition.

18

Respondent shall file with the Answer and serve on

If Petitioner wishes to respond to the Answer, he shall do

19

so by filing a Traverse with the Court and serving it on Respondent

20

within thirty (30) days of his receipt of the Answer.

21

3.

In lieu of an Answer, Respondent may file a Motion to

22

Dismiss on procedural grounds, as set forth in the Advisory

23

Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases.

24

If Respondent files such a motion, Petitioner shall file with the

25

Court and serve on Respondent an Opposition or Statement of

26

Non-Opposition within thirty (30) days of receipt of the motion, and

27

Respondent shall file with the Court and serve on Petitioner a Reply

28

4

1

within fifteen (15) days of receipt of any Opposition.

2

4.

Petitioner is reminded that all communications with

3

the Court must be served on Respondent by mailing a true copy of the

4

document to Respondent’s counsel.

5

Court and all parties informed of any change of address.

6

the address on file is:

7

State Prison - Solano, P.O. Box 4000, Vacaville, CA 95696-4000.

8

case-related correspondence will go to this address unless

9

Petitioner provides the Court and all parties with a new address.

United States District Court
For the Northern District of California

10
11

5.

Petitioner also must keep the
Currently

Robert Roy Garcia, #F-55098, California

Petitioner is directed to file an signed signature

page by February 24, 2012.

12
IT IS SO ORDERED.
13
14
DATED

01/31/2012

15

THELTON E. HENDERSON
United States District Judge

16
17
18
19

G:\PRO-SE\TEH\HC.11\Garcia-11-1188-osc.wpd

20
21
22
23
24
25
26
27
28

All

5