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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JOHN NGUYEN, 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 11-03324 WHA Petitioner, v. ORDER TO SHOW CAUSE KATHLEEN DICKINSON, Warden, California Medical Facility, Respondent. / 16 INTRODUCTION 17 18 Petitioner John Nguyen is currently confined by the California Department of Corrections. 19 Pursuant to 28 U.S.C. 2254, he has filed a petition for a writ of habeas corpus, through his 20 counsel. Venue is proper because the conviction was obtained in the Superior Court of Santa 21 Clara County, which is in this district. See 28 U.S.C. 2241(d). In his petition for writ of habeas 22 corpus, he has stated valid claims under 28 U.S.C. 2254. The respondent is ORDERED TO 23 ANSWER the petition. STATEMENT 24 25 A jury in Santa Clara County convicted petitioner of one count of attempted murder. 26 Petitioner was sentenced to 30 years to life on that count. The California Court of Appeal 27 affirmed the conviction on direct appeal, and the California Supreme Court denied his petition for 28 review. Habeas petitions filed by petitioner in the California Court of Appeal and the California Supreme Court failed. 1 2 ANALYSIS A. STANDARD OF REVIEW. 3 A district court may entertain a habeas petition filed by someone in custody pursuant to a 4 state-court judgment but only on grounds that he is held in violation of the Constitution, laws or 5 treaties of the United States. 28 U.S.C. 2254(a). A court may “issue an order directing the 6 respondent to show cause why the writ should not be granted,” unless the petition is baseless. 28 7 U.S.C. 2243. Summary dismissal is appropriate only if the petition’s allegations are vague, 8 conclusory, incredible or frivolous. See Hendricks v. Vazquez, 908 F.2d 490, 491 (9th Cir. 1990). 9 B. As grounds for federal habeas relief, petitioner claims the conviction was imposed in 11 For the Northern District of California United States District Court 10 LEGAL CLAIMS. violation of his constitutional rights guaranteed under the Fifth, Sixth, Eighth, and Fourteenth 12 Amendments to the United States Constitution. In support of these claims, he alleges that defense 13 counsel failed to present readily available eyewitness and expert testimony confirming 14 petitioner’s testimony that he was innocent and that newly discovered evidence fundamentally 15 undercuts the state’s case against petitioner. These claims when liberally construed, are sufficient 16 to require a response. 17 CONCLUSION 18 1. The CLERK IMMEDIATELY SHALL SERVE by regular mail a copy of this order and the 19 petition with attachments upon respondent and respondent’s attorney, the Attorney General of the 20 State of California. The CLERK ALSO SHALL SERVE a copy of this order on petitioner. 21 2. RESPONDENT SHALL FILE WITH THE COURT AND SERVE ON PETITIONER, WITHIN 22 SIXTY DAYS OF THE ISSUANCE OF THIS ORDER, AN ANSWER 23 of the Rules governing Section 2254 Cases, showing cause why a writ of habeas corpus should 24 not be granted. Respondent shall, by that date, also serve all other materials required by Habeas 25 Local Rule 2254-6(b). The record must be indexed. 26 conforming in all respects to Rule 5 If petitioner wishes to respond to the answer, he shall do so by filing a TRAVERSE WITH 27 THE COURT AND SERVING IT ON RESPONDENT WITHIN THIRTY DAYS OF THE DATE THE 28 ANSWER IS FILED. 2 1 3. Respondent may file, within sixty days, a motion to dismiss on procedural grounds in 2 lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 3 Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and 4 serve on respondent an opposition or statement of non-opposition within thirty days of the date 5 the motion is filed, and respondent shall file with the court and serve on petitioner a reply within 6 fifteen days of the date any opposition is filed. 7 4. Petitioner is reminded that all communications with the court must be served on 8 respondent by mailing a true and correct copy of the document to respondent’s counsel. 9 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 11 For the Northern District of California United States District Court 10 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 12 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 13 14 IT IS SO ORDERED. 15 16 Dated: December 28, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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