Espino v. Virga

Filing 6

ORDER TO SHOW CAUSE and ORDER GRANTING 4 MOTION for Leave to Proceed in forma pauperis filed by Santiago Soto. Signed by Judge Charles R. Breyer on 11/3/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 11/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SANTIAGO SOTO, K-06764,
Petitioner,

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vs.
TIM VIRGA, Warden,
Respondent.

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No. C 11-3598 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 4)

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Petitioner, a state prisoner incarcerated at California State Prison,

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Sacramento, has filed a pro se petition for a writ of habeas corpus under 28

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U.S.C. § 2254 challenging a conviction from Santa Clara County Superior Court.

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He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of second degree murder by means of

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discharging a firearm from a motor vehicle. On or about March 26, 1996, he was

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sentenced to 20 years to life in state prison. Petitioner unsuccessfully appealed

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his conviction to the California Court of Appeal and the Supreme Court of

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California, which denied review on September 17, 1997.

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Petitioner also unsuccessfully sought collateral relief from the state courts

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by filing numerous petitions and complaints for several years. On March 16,

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2011, the Supreme Court of California denied his final petition for a writ of

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habeas corpus.

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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

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims
Petitioner seeks federal habeas corpus relief by raising three claims: (1)

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newly discovered evidence, (2) ineffective assistance of counsel, and (3)

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prosecutorial misconduct. Petitioner also raises various arguments as to why his

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petition should not be deemed untimely. Liberally construed, petitioner's claims

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appear minimally cognizable under § 2254 and merit an answer from respondent.

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See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must

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construe pro se petitions for writs of habeas corpus liberally).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 4) is

GRANTED.
2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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2

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

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

Respondent may file 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

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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

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED:

Nov. 3, 2011
CHARLES R. BREYER
United States District Judge

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