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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 No. C 11-4633 WHA (PR) JAMES TOLDS, 10 ORDER TO SHOW CAUSE v. For the Northern District of California United States District Court Petitioner, 11 12 GARY SWARTHOUT, Warden, 13 Respondent. (Docket No. 2) / 14 15 INTRODUCTION 16 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 17 pursuant to 28 U.S.C. 2254. He paid the filing fee. 18 STATEMENT 19 In 2004, petitioner was convicted in Alameda County Superior Court of murder, 20 numerous counts of attempted murder, and a sentence enhancement for the use of a gun. On 21 appeal, the California Court of Appeal reversed the attempted murder convictions and remanded 22 to the trial court where petitioner was re-sentenced. Petitioner then pursued habeas petitions in 23 all three levels of the California courts, which petitions were denied. Thereafter, petitioner filed 24 the instant federal habeas petition. 25 ANALYSIS 26 A. STANDARD OF REVIEW 27 A federal court may entertain a petition for writ of habeas corpus "in behalf of a person 28 in custody pursuant to the judgment of a State court only on the ground that he is in custody in 1 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 2 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 3 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 4 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 5 court must “specify all the grounds for relief which are available to the petitioner ... and shall 6 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 7 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 8 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 9 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). 11 For the Northern District of California United States District Court 10 B. 12 LEGAL CLAIMS As grounds for federal habeas relief, petitioner claims that he was not present when he 13 was re-sentenced, preventing him from testifying, presenting evidence, filing a motion for a 14 new trial, requesting a new pre-sentence report, and challenging his restitution fine. Petitioner 15 also claims that he did not have counsel at his re-sentencing hearing, and to the extent he did 16 have counsel, counsel was ineffective. Petitioner’s claims, when liberally construed, are 17 cognizable. 18 CONCLUSION 19 1. The clerk shall mail a copy of this order and the petition with all attachments to the 20 respondent and the respondent's attorney, the Attorney General of the State of California. The 21 clerk shall also serve a copy of this order on the petitioner. 22 2. Respondent shall file with the court and serve on petitioner, within ninety days of the 23 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 24 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 25 the claims found cognizable herein. Respondent shall file with the answer and serve on 26 petitioner a copy of all portions of the state trial record that have been transcribed previously 27 and that are relevant to a determination of the issues presented by the petition. 28 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 2 1 court and serving it on respondent within thirty days of the date the answer is filed. 2 3. Respondent may file, within ninety days, a motion to dismiss on procedural grounds 3 in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 4 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 5 court and serve on respondent an opposition or statement of non-opposition within thirty days 6 of the date the motion is filed, and respondent shall file with the court and serve on petitioner a 7 reply within fifteen days of the date any opposition is filed. 8 9 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 11 For the Northern District of California United States District Court 10 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 12 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 13 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 14 15 16 5. Leave to proceed in forma pauperis (docket number 2) is DENIED as petitioner paid the fee. IT IS SO ORDERED. 17 Dated: October 28 , 2011. 18 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 G:\PRO-SE\WHA\HC.11\ROMERO4800.OSC.wpd 27 28 3

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