Dinsmore v. Lewis

Filing 2

ORDER TO SHOW CAUSE. Respondent to file and serve upon Petitioner an Answer on or Before 1/27/2012. Petitioner to file with the Court and serve upon Petitioner a Traverse on or before 3/2/2012. Signed by Judge Edward M. Chen on 12/13/2011. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 12/13/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE G. DINSMORE,

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Petitioner,

No. C-11-3296 EMC (pr)

v.

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For the Northern District of California

United States District Court

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GREG LEWIS,

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Respondent.
___________________________________/

ORDER TO SHOW CAUSE

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INTRODUCTION

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Steve G. Dinsmore, an inmate at Pelican Bay State Prison, filed this pro se action for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review

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pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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BACKGROUND

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The petition and attachments thereto provide the following information: Dinsmore was

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convicted in Humboldt County Superior Court of assault with a firearm on a peace officer, resisting

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arrest, and possession of a firearm by a felon. See Petition, unnumbered exhibits, Petition For

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Review, p. 3. In December 2006, Dinsmore was sentenced to a total of 30 years and eight months in

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prison.

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Dinsmore appealed. The judgment of conviction was affirmed by the California Court of

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Appeal in 2009 and the petition for review was denied by the California Supreme Court in 2010.

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Dinsmore then filed this action.

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DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall “award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

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For the Northern District of California

United States District Court

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Cir. 1990).
The petition alleges the following claims: (1) “due process requires a new trial where a new

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post-trial forensic analysis rebuts a crucial component of case,” Petition, pp. 7-8; (2) defense counsel

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provided ineffective assistance of counsel in that he failed to obtain a reliable voice analysis until

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after the trial; (3) defense counsel provided ineffective assistance of counsel in that he failed to

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object to reading the prior conviction allegations to the jury; and (4) defense counsel provided

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ineffective assistance in that he failed to adequately preserve the issue of the multiple defects in the

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court’s sentencing reasons.

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Giving the pro se petition the liberal construction to which it is entitled, the Court cannot say

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that the first claim is patently frivolous and therefore will require Respondent to respond to it. The

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other three claims, liberally construed, are cognizable claims for violations of the Sixth Amendment

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right to counsel, which guarantees not only assistance, but effective assistance, of counsel. See

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Strickland v. Washington, 466 U.S. 668, 686 (1984).

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CONCLUSION

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For the foregoing reasons,

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The petition warrants a response.

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2.

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

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attachments thereto upon Respondent and Respondent’s attorney, the Attorney General of the State

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

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Respondent must file and serve upon Petitioner, on or before January 27, 2012, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of the court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petition.

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For the Northern District of California

United States District Court

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4.

If Petitioner wishes to respond to the answer, he must do so by filing a traverse with

the Court and serving it on Respondent on or before March 2, 2012.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

Court informed of any change of address and must comply with the Court’s orders in a timely
fashion.
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Petitioner is cautioned that he must include the case name and case number for this

case on any document he submits to this Court for consideration in this case.

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IT IS SO ORDERED.

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Dated: December 13, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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