Nguyen v. Dickinson

Filing 3

ORDER TO SHOW CAUSE Habeas Answer due by 2/27/2012.. Signed by Judge Alsup on December 28, 2011. (whalc2, COURT STAFF) (Filed on 12/28/2011) (Additional attachment(s) added on 12/28/2011: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN NGUYEN,

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For the Northern District of California

United States District Court

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No. C 11-03324 WHA

Petitioner,
v.

ORDER TO SHOW CAUSE

KATHLEEN DICKINSON, Warden,
California Medical Facility,
Respondent.
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INTRODUCTION

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Petitioner John Nguyen is currently confined by the California Department of Corrections.

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Pursuant to 28 U.S.C. 2254, he has filed a petition for a writ of habeas corpus, through his

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counsel. Venue is proper because the conviction was obtained in the Superior Court of Santa

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Clara County, which is in this district. See 28 U.S.C. 2241(d). In his petition for writ of habeas

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corpus, he has stated valid claims under 28 U.S.C. 2254. The respondent is ORDERED TO

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ANSWER the petition.
STATEMENT

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A jury in Santa Clara County convicted petitioner of one count of attempted murder.

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Petitioner was sentenced to 30 years to life on that count. The California Court of Appeal

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affirmed the conviction on direct appeal, and the California Supreme Court denied his petition for

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review. Habeas petitions filed by petitioner in the California Court of Appeal and the California
Supreme Court failed.

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ANALYSIS
A.

STANDARD OF REVIEW.

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A district court may entertain a habeas petition filed by someone in custody pursuant to a

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state-court judgment but only on grounds that he is held in violation of the Constitution, laws or

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treaties of the United States. 28 U.S.C. 2254(a). A court may “issue an order directing the

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respondent to show cause why the writ should not be granted,” unless the petition is baseless. 28

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U.S.C. 2243. Summary dismissal is appropriate only if the petition’s allegations are vague,

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conclusory, incredible or frivolous. See Hendricks v. Vazquez, 908 F.2d 490, 491 (9th Cir. 1990).

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B.

As grounds for federal habeas relief, petitioner claims the conviction was imposed in

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For the Northern District of California

United States District Court

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LEGAL CLAIMS.

violation of his constitutional rights guaranteed under the Fifth, Sixth, Eighth, and Fourteenth

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Amendments to the United States Constitution. In support of these claims, he alleges that defense

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counsel failed to present readily available eyewitness and expert testimony confirming

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petitioner’s testimony that he was innocent and that newly discovered evidence fundamentally

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undercuts the state’s case against petitioner. These claims when liberally construed, are sufficient

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to require a response.

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CONCLUSION

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1. The CLERK IMMEDIATELY SHALL SERVE by regular mail a copy of this order and the

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petition with attachments upon respondent and respondent’s attorney, the Attorney General of the

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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

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SIXTY DAYS OF THE ISSUANCE OF THIS ORDER, AN ANSWER

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

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not be granted. Respondent shall, by that date, also serve all other materials required by Habeas

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Local Rule 2254-6(b). The record must be indexed.

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conforming in all respects to Rule 5

If petitioner wishes to respond to the answer, he shall do so by filing a TRAVERSE WITH

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THE COURT AND SERVING IT ON RESPONDENT WITHIN THIRTY DAYS OF THE DATE THE

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ANSWER IS FILED.
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3. Respondent may file, within sixty days, 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 Rules Governing

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Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and

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serve on respondent an opposition or statement of non-opposition within thirty days of the date

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the motion is filed, and respondent shall file with the court and serve on petitioner a reply within

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fifteen days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true and correct copy of the document to respondent’s counsel.

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Petitioner must keep the court informed of any change of address and must comply with the
court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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For the Northern District of California

United States District Court

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,

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104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.

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Dated: December 28, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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