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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LOVELL S. KELLER, G-56168,
Petitioner,

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vs.
M. McDONALD, Warden,

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Respondent.

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No. C 11-1190 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 6)

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Petitioner, a prisoner incarcerated at High Desert State Prison, has filed a

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pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction from Mendocino County Superior Court. He also seeks to proceed in

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forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of first degree murder and burglary.

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The jury also found true the allegation that a knife had ben used in the

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commission of the murder. On April 28, 2009, petitioner was sentenced to prison

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for a term of 25 years to life plus one year.

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Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and the Supreme Court of California, which denied review on October

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20, 2010.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims
Petitioner seeks federal habeas corpus relief on the ground that the police

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violated their duty under California v. Trombetta, 467 U.S. 479 (1984), to

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preserve a surveillance video which would have supported his claim that he

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killing was the product of provocation rather than premeditation. Liberally

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construed, the claim appears cognizable under § 2254 and merits an answer from

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

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courts must construe pro se petitions for writs of habeas corpus liberally).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's motion for leave to proceed in forma pauperis (docket #

6) is DISMISSED as moot because he recently paid the requisite filing fee.

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2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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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.
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Respondent may file a motion to dismiss on procedural grounds in

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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED:

May 17, 2011
CHARLES R. BREYER
United States District Judge

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