Tolds v. Swarthout

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge William Alsup on 10/26/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 11-4633 WHA (PR)

JAMES TOLDS,
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ORDER TO SHOW CAUSE

v.
For the Northern District of California

United States District Court

Petitioner,
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GARY SWARTHOUT, Warden,
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Respondent.

(Docket No. 2)
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INTRODUCTION
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. 2254. He paid the filing fee.
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STATEMENT
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In 2004, petitioner was convicted in Alameda County Superior Court of murder,
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numerous counts of attempted murder, and a sentence enhancement for the use of a gun. On
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appeal, the California Court of Appeal reversed the attempted murder convictions and remanded
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to the trial court where petitioner was re-sentenced. Petitioner then pursued habeas petitions in
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all three levels of the California courts, which petitions were denied. Thereafter, petitioner filed
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the instant federal habeas petition.
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ANALYSIS
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A.

STANDARD OF REVIEW

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A federal court may entertain a petition for writ of habeas corpus "in behalf of a person
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in 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); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d
688, 689 (1st Cir. 1970)).

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For the Northern District of California

United States District Court

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B.

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LEGAL CLAIMS
As grounds for federal habeas relief, petitioner claims that he was not present when he

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was re-sentenced, preventing him from testifying, presenting evidence, filing a motion for a

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new trial, requesting a new pre-sentence report, and challenging his restitution fine. Petitioner

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also claims that he did not have counsel at his re-sentencing hearing, and to the extent he did

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have counsel, counsel was ineffective. Petitioner’s claims, when liberally construed, are

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cognizable.

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CONCLUSION

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1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within ninety days of the

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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the claims found cognizable herein. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state trial record that have been transcribed previously

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and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
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court and serving it on respondent within thirty days of the date the answer is filed.

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3. Respondent may file, within ninety days, a motion to dismiss on procedural grounds

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in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

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

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court and serve on respondent an opposition or statement of non-opposition within thirty days

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of the date the motion is filed, and respondent shall file with the court and serve on petitioner a

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reply within 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
respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must
keep the court informed of any change of address and must comply with the court's orders in a

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For the Northern District of California

United States District Court

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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5. Leave to proceed in forma pauperis (docket number 2) is DENIED as petitioner paid
the fee.
IT IS SO ORDERED.

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Dated: October

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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