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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 12 15 16 ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS Petitioner, 13 14 No. C 11-1552 JSW (PR) RODNEY KRALOVETZ, v. GROUNDS, Warden, (Docket No. 2) Respondent. / 17 18 INTRODUCTION 19 Petitioner, a prisoner of the State of California proceeding pro se, has filed a 20 habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of 21 his state court conviction. This order directs Respondent to show cause why the petition 22 should not be granted and grants Petitioner’s request to proceed in forma pauperis. BACKGROUND 23 24 In 2007, Petitioner was convicted in Santa Clara County Superior Court of two 25 counts of forcible oral copulation and one count of lewd acts on a child aged 14 or 15. 26 The trial court sentenced him to two consecutive terms of 15-years-to-life in state prison. 27 The California Court of Appeal affirmed on direct appeal, and the California Supreme 28 Court denied a petition for review. 1 2 DISCUSSION I. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 3 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 7 8 why the writ should not be granted, unless it appears from the application that the 9 applicant or person detained is not entitled thereto.” Id. § 2243. 11 For the Northern District of California United States District Court 10 II. Legal Claims As grounds for federal habeas relief, Petitioner claims: (1) that he was deprived of 12 his right of allocution at sentencing; (2) he received ineffective assistance of counsel in 13 18 different respects; (3) that he was subjected to cruel and unusual punishment in jail 14 immediately prior to testifying; (4) the prosecution failed to turn over required discovery, 15 in two different respects; (4) that his Miranda rights were violated in two different 16 respects; (5) he was subject to vindictive prosecution; (6) that he was charged with 17 crimes that did not exist; (7) that he was charged and convicted of a crime that had been 18 dismissed; (8) that he was charged with serving a prior prison term when in fact he had 19 not served one; (9) that the victim’s statements to the police implicating Petitioner was 20 coerced by the police; (10) that the prosecution did not prove “force and duress;” (11) 21 there was insufficient evidence to support the conviction for forcible copulation; (12) 22 that the trial court failed to instruct the jury on the lesser-included offenses to the counts 23 of forcible oral copulation; (13) the “one-strike” findings violated his right to due 24 process in three respects; (14) the jury instructions set forth an inadequate standard of 25 proof; (15) amendments to the charges violated the applicable statute of limitations; and 26 (16) the prosecutor committed misconduct in closing argument 27 Petitioner’s claims, when liberally construed, are cognizable. 28 2 1 CONCLUSION 2 For the foregoing reasons and for good cause shown, 3 1. The Clerk shall serve by certified mail a copy of this order and the petition, and 4 all attachments thereto, on Respondent and Respondent's attorney, the Attorney General 5 of the State of California. The Clerk also shall serve a copy of this order on Petitioner. 6 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 9 not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all 10 portions of the state trial record that have been transcribed previously and that are relevant 11 For the Northern District of California days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 8 United States District Court 7 to a determination of the issues presented by the petition. If Petitioner wishes to respond 12 to the answer, she shall do so by filing a traverse with the Court and serving it on 13 Respondent within thirty (30) days of the date the answer is filed. 14 3. Respondent may, within ninety (90) days, file a motion to dismiss on 15 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to 16 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, 17 Petitioner shall file with the Court and serve on Respondent an opposition or statement of 18 non-opposition within thirty (30) days of the date the motion is filed, and Respondent 19 shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date 20 any opposition is filed. 4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep 21 22 the Court informed of any change of address by filing a separate paper captioned “Notice 23 of Change of Address.” She must comply with the Court’s orders in a timely fashion. 24 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 25 to Federal Rule of Civil Procedure 41(b). 26 // 27 // 28 3 1 2 3 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. 4 5 6 DATED: May 3, 2011 JEFFREY S. WHITE United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 RODNEY KRALOVETZ, Case Number: CV11-01552 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 GROUNDS et al, 9 Defendant. 11 For the Northern District of California United States District Court 10 / 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. 15 16 17 Rodney T. Kralovetz F79317 18 P.O. Box 705 Soledad, CA 93960 19 20 21 22 23 24 25 26 27 28 Dated: May 3, 2011 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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