Hill v. Virga et al

Filing 5

ORDER RE: CLAIM 6 (SI, COURT STAFF) (Filed on 11/14/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LEE HILL,

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United States District Court
For the Northern District of California

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No. C 11-4793 SI (pr)

Petitioner,

ORDER RE. CLAIM 6

v.
T. VIRGA, warden,

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Respondent.
/

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David Lee Hill, an inmate at the California State Prison - Sacramento, filed this pro se

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action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court reviewed the

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petition, dismissed the Eighth Amendment portion of Claim # 1, and all of Claim # 6 and Claim

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# 9, and ordered respondent to show cause why the petition should not be granted as to several

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other claims.

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In Claim 6, petitioner had alleged that the trial court violated petitioner's right to due

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process when it admitted the rebuttal evidence. The court dismissed Claim 6 because petitioner

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did not state any facts concerning this claim, nor did he make any legal argument in support of

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it. The court explained that, if petitioner wanted to pursue this claim, he had to file an

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amendment to his petition stating the facts supporting this claim for habeas relief. Petitioner did

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so. In his "amendment to petition" (docket # 4), petitioner alleged that his right to due process

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was violated by the admission of rebuttal evidence that included "gory photographs of a double

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murder unrelated to petitioner," "police officer testimony 'rebutting' witness Jones's testimony

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on a collateral matter that the prosecutor himself had elicited," and gang testimony from witness

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Telfor. Docket # 4 at 2-3. Now that petitioner has stated the facts supporting it, Claim 6 states

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a cognizable claim for habeas relief and warrants a response. If and when respondent files an

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answer to the petition, he should include a discussion of Claim 6 with the discussion of the other

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claims identified in the order to show cause.

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IT IS SO ORDERED.

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DATED: November 14, 2011

______________________
SUSAN ILLSTON
United States District Judge

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