Kralovetz v. Grounds

Filing 7

ORDER TO SHOW CAUSE; GRANTING 2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge JEFFREY S. WHITE on 5/3/11. (jjoS, COURT STAFF) (Filed on 5/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ORDER TO SHOW CAUSE;
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

Petitioner,

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No. C 11-1552 JSW (PR)

RODNEY KRALOVETZ,

v.
GROUNDS, Warden,

(Docket No. 2)

Respondent.
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INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, has filed a

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habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of

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his state court conviction. This order directs Respondent to show cause why the petition

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should not be granted and grants Petitioner’s request to proceed in forma pauperis.

BACKGROUND

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In 2007, Petitioner was convicted in Santa Clara County Superior Court of two

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counts of forcible oral copulation and one count of lewd acts on a child aged 14 or 15.

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The trial court sentenced him to two consecutive terms of 15-years-to-life in state prison.

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The California Court of Appeal affirmed on direct appeal, and the California Supreme

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Court denied a petition for review.

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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 of a

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person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a).
It shall “award the writ or issue an order directing the respondent to show cause

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

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applicant or person detained is not entitled thereto.” Id. § 2243.

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For the Northern District of California

United States District Court

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II.

Legal Claims
As grounds for federal habeas relief, Petitioner claims: (1) that he was deprived of

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his right of allocution at sentencing; (2) he received ineffective assistance of counsel in

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18 different respects; (3) that he was subjected to cruel and unusual punishment in jail

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immediately prior to testifying; (4) the prosecution failed to turn over required discovery,

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in two different respects; (4) that his Miranda rights were violated in two different

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respects; (5) he was subject to vindictive prosecution; (6) that he was charged with

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crimes that did not exist; (7) that he was charged and convicted of a crime that had been

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dismissed; (8) that he was charged with serving a prior prison term when in fact he had

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not served one; (9) that the victim’s statements to the police implicating Petitioner was

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coerced by the police; (10) that the prosecution did not prove “force and duress;” (11)

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there was insufficient evidence to support the conviction for forcible copulation; (12)

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that the trial court failed to instruct the jury on the lesser-included offenses to the counts

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of forcible oral copulation; (13) the “one-strike” findings violated his right to due

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process in three respects; (14) the jury instructions set forth an inadequate standard of

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proof; (15) amendments to the charges violated the applicable statute of limitations; and

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(16) the prosecutor committed misconduct in closing argument

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Petitioner’s claims, when liberally construed, are cognizable.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. The Clerk shall serve by certified mail a copy of this order and the petition, and

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

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2. Respondent shall file with the Court and serve on Petitioner, within ninety (90)

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

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not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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For the Northern District of California

days of the issuance of this order, an answer conforming in all respects to Rule 5 of the

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United States District Court

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to a determination of the issues presented by the petition. If Petitioner wishes to respond

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to the answer, she shall do so by filing a traverse with the Court and serving it on

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Respondent within thirty (30) days of the date the answer is filed.

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3. Respondent may, within ninety (90) days, file a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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Rule 4 of the 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 statement of

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non-opposition within thirty (30) days of the date the motion is filed, and Respondent

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shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date

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any opposition is filed.
4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” She must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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//

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//

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5. Petitioner’s applications for leave to proceed in forma pauperis (docket
number 2) is GRANTED in light of Petitioner’s lack of funds.
IT IS SO ORDERED.

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DATED: May 3, 2011
JEFFREY S. WHITE
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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RODNEY KRALOVETZ,

Case Number: CV11-01552 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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GROUNDS et al,

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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

12 District Court, Northern District of California.
13 That on May 3, 2011, I SERVED a true and correct copy(ies) of the attached, by placing

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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17 Rodney T. Kralovetz
F79317

18 P.O. Box 705

Soledad, CA 93960

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Dated: May 3, 2011
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk