Keller v. McDonald

Filing 7

ORDER TO SHOW CAUSE, Motion is dismissed as moot 6 MOTION for Leave to Proceed in forma pauperis filed by Lovell S. Keller.. Signed by Judge Charles R. Breyer on 5/17/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 5/20/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 LOVELL S. KELLER, G-56168, Petitioner, 12 13 14 vs. M. McDONALD, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) No. C 11-1190 CRB (PR) ORDER TO SHOW CAUSE (Docket # 6) 16 17 Petitioner, a prisoner incarcerated at High Desert State Prison, has filed a 18 pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 19 conviction from Mendocino County Superior Court. He also seeks to proceed in 20 forma pauperis under 28 U.S.C. § 1915. 21 22 BACKGROUND Petitioner was convicted by a jury of first degree murder and burglary. 23 The jury also found true the allegation that a knife had ben used in the 24 commission of the murder. On April 28, 2009, petitioner was sentenced to prison 25 for a term of 25 years to life plus one year. 26 Petitioner unsuccessfully appealed his conviction to the California Court 27 of Appeal and the Supreme Court of California, which denied review on October 28 20, 2010. 1 2 DISCUSSION A. Standard of Review This court may entertain a petition for a writ of habeas corpus "in behalf 3 4 of a person in custody pursuant to the judgment of a State court only on the 5 ground that he is in custody in violation of the Constitution or laws or treaties of 6 the United States." 28 U.S.C. § 2254(a). 7 It shall "award the writ or issue an order directing the respondent to show 8 cause why the writ should not be granted, unless it appears from the application 9 that the applicant or person detained is not entitled thereto." Id. § 2243. 10 B. Claims Petitioner seeks federal habeas corpus relief on the ground that the police 11 12 violated their duty under California v. Trombetta, 467 U.S. 479 (1984), to 13 preserve a surveillance video which would have supported his claim that he 14 killing was the product of provocation rather than premeditation. Liberally 15 construed, the claim appears cognizable under § 2254 and merits an answer from 16 respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal 17 courts must construe pro se petitions for writs of habeas corpus liberally). 18 CONCLUSION 19 For the foregoing reasons and for good cause shown, 20 1. 21 Petitioner's motion for leave to proceed in forma pauperis (docket # 6) is DISMISSED as moot because he recently paid the requisite filing fee. 22 2. The clerk shall serve a copy of this order and the petition and all 23 attachments thereto on respondent and respondent's attorney, the Attorney 24 General of the State of California. The clerk also shall serve a copy of this order 25 on petitioner. 26 / 27 28 2 1 3. Respondent shall file with the court and serve on petitioner, within 2 60 days of the issuance of this order, an answer conforming in all respects to Rule 3 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of 4 habeas corpus should not be granted. Respondent shall file with the answer and 5 serve on petitioner a copy of all portions of the state trial record that have been 6 transcribed previously and that are relevant to a determination of the issues 7 presented by the petition. 8 9 10 11 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 30 days of his receipt of the answer. 4. Respondent may file a motion to dismiss on procedural grounds in 12 lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 13 Rules Governing Section 2254 Cases. If respondent files such a motion, 14 petitioner shall file with the court and serve on respondent an opposition or 15 statement of non-opposition within 30 days of receipt of the motion, and 16 respondent shall file with the court and serve on petitioner a reply within 15 days 17 of receipt of any opposition. 18 5. Petitioner is reminded that all communications with the court must 19 be served on respondent by mailing a true copy of the document to respondent’s 20 counsel. Petitioner must also keep the court and all parties informed of any 21 change of address. 22 SO ORDERED. 23 DATED: May 17, 2011 CHARLES R. BREYER United States District Judge 24 25 26 G:\PRO-SE\CRB\HC.11\Keller, L1.osc.wpd 27 28 3

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