Gutierrez v. Gibson et al

Filing 4

ORDER TO SHOW CAUSE AND DENYING 2 Leave to Proceed in forma pauperis. Signed by Judge Thelton E. Henderson on 04/05/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/9/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 Petitioner, 13 14 No. C-11-4740 TEH (PR) EDWARD GUTIERREZ, ORDER TO SHOW CAUSE AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS v. C. GIBSON, Warden, 15 Respondent. 16 / Doc. #2 17 18 Petitioner, a state prisoner incarcerated at Corcoran 19 State Prison in Corcoran, California, has filed a pro se Petition 20 for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a 21 judgment of conviction from Santa Clara County Superior Court. 22 Doc. #1. 23 24 I According to the Petition, in September 2008, Petitioner 25 was sentenced to twenty-seven years and four months in state prison 26 following his conviction for burglary, assault with a deadly weapon, 27 felony vandalism, possession of a billy club, and being under the 28 influence of methamphetamine. Doc. #1 at 2. Petitioner 1 unsuccessfully appealed his conviction to the state appellate courts 2 and to the California Supreme Court. 3 sought post-conviction relief in the California Supreme Court, which 4 was denied on July 27, 2011. 5 Petition for a Writ of Habeas Corpus followed. 6 Doc. #1 at 3. Doc. #1 at 4. Petitioner The instant federal II 7 This Court may entertain a petition for a writ of habeas 8 corpus “in behalf of a person in custody pursuant to the judgment of 9 a State court only on the ground that he is in custody in violation United States District Court For the Northern District of California 10 of the Constitution or laws or treaties of the United States.” 11 U.S.C. § 2254(a). 12 directing the respondent to show cause why the writ should not be 13 granted, unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” 15 16 17 28 It shall “award the writ or issue an order Id. § 2243. Petitioner seeks federal habeas corpus relief by alleging that: (1) trial counsel Jessica Delgato was ineffective for 18 failing to call certain witnesses (Doc. #1-1 at 3), failing to 19 attack the allegedly improper identification of Petitioner (id.), 20 and tampering with witness Hernandez; 21 (2) trial counsel Kipp Davis was ineffective for failing 22 to address inaccuracies and errors in the testimony provided by 23 witness Hernandez (id. at 5), coercing Petitioner to plead guilty 24 (id. at 5), failing to ensure the chain of custody of a key piece of 25 evidence (camera) (id. at 7), failing to object to the introduction 26 of allegedly prejudicial photos of Petitioner (id. at 9-10), failing 27 to impeach witnesses who lied on the stand (id. at 13), failing to 28 2 1 cross-examine the blood technician who examined Petitioner and the 2 doctor who examined witness Hernandez (id. at 16), and failing to 3 contest the trial court’s application of a prior conviction in 4 determining Petitioner’s sentence (id. at 20-21); 5 (3) prosecutorial misconduct in allegedly mishandling and 6 misrepresenting the chain of custody regarding a key piece of 7 evidence (id. at 6-9) and in introducing allegedly prejudicial 8 pictures of Petitioner (id. at 9-10); 9 (4) judicial misconduct in allowing Mr. Davis to represent United States District Court For the Northern District of California 10 Petitioner after Mr. Davis allegedly admitted to threatening 11 Petitioner (id. at 6), and for failing to hear a Mardsen motion (id. 12 at 15); 13 (5) appellate counsel was ineffective for failing to raise 14 the above issues in Petitioner’s direct appeal, and for failing to 15 communicate openly with Petitioner; 16 (6) the restitution fine was excessive and constituted 17 cruel and unusual punishment in violation of the Eighth Amendment 18 (id. at 21); and 19 20 (7) juror misconduct and bias on the parts of Jurors 6, 10 and 12 (id. at 22). 21 Liberally construed, Petitioner’s claims appear cognizable 22 under 28 U.S.C. § 2254 and merit an Answer from Respondent. 23 Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 24 must construe pro se petitions for writs of habeas corpus 25 liberally). 26 // 27 // 28 // 3 See 1 III 2 For the foregoing reasons and for good cause shown, 3 1. The Clerk shall serve by certified mail a copy of 4 this Order and the Petition, and all attachments thereto (i.e., Doc. 5 #1), on Respondent and Respondent’s attorney, the Attorney General 6 of the State of California. 7 this Order on Petitioner. 8 9 2. The Clerk also shall serve a copy of Respondent shall file with the Court and serve on Petitioner, within sixty (60) days of the issuance of this Order, an United States District Court For the Northern District of California 10 Answer conforming in all respects to Rule 5 of the Rules Governing 11 Section 2254 Cases, showing cause why a writ of habeas corpus should 12 not be granted. 13 Petitioner a copy of all portions of the state trial record that 14 have been transcribed previously and that are relevant to a 15 determination of the issues presented by the Petition. 16 Respondent shall file with the Answer and serve on If Petitioner wishes to respond to the Answer, he shall do 17 so by filing a Traverse with the Court and serving it on Respondent 18 within thirty (30) days of his receipt of the Answer. 19 3. In lieu of an Answer, Respondent may file a Motion to 20 Dismiss on procedural grounds, as set forth in the Advisory 21 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 22 If Respondent files such a motion, Petitioner shall file with the 23 Court and serve on Respondent an Opposition or Statement of 24 Non-Opposition within thirty (30) days of receipt of the motion, and 25 Respondent shall file with the Court and serve on Petitioner a Reply 26 within fifteen (15) days of receipt of any Opposition. 27 28 4. Petitioner’s request to proceed in forma pauperis 4 1 (Doc. #2) is DENIED because he has sufficient funds to pay the $5.00 2 filing fee in this action. 3 no later than May 7, 2012 or this action may be dismissed. 4 5. Petitioner must pay the $5.00 filing fee Petitioner is reminded that all communications with 5 the Court must be served on Respondent by mailing a true copy of the 6 document to Respondent’s counsel. 7 Court and all parties informed of any change of address. 8 Petitioner also must keep the IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 DATED 04/05/2012 THELTON E. HENDERSON United States District Judge 11 12 13 14 G:\PRO-SE\TEH\HC.11\Guiterrez-11-4740-osc.wpd 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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