Orr v. Yates

Filing 4

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 10/28/11. (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 11-4923 WHA (PR) TALYON JEROME ORR, 10 ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS v. For the Northern District of California United States District Court Petitioner, 11 12 JAMES A. YATES, Warden, 13 Respondent. / 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 has applied for leave to proceed in forma pauperis. 18 STATEMENT 19 Petitioner was convicted in Santa Clara County Superior Court of burglary, receiving 20 stolen property, and sentence enhancements for two prior strike convictions. On appeal, the 21 California Court of Appeal affirmed the judgment, and the California Supreme Court denied a 22 petition for review. Petitioner then filed habeas petitions in all three levels of the California 23 courts, but the petitions were denied. Thereafter, petitioner filed the instant federal habeas 24 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: (1) evidence of his prior arrests 13 was improperly admitted; (2) trial counsel was ineffective in failing to sufficiently object to the 14 admission of such evidence and in admitting to petitioner’s guilt of receiving stolen property 15 during closing argument; (3) there was insufficient evidence to support his conviction; (4) 16 counsel was ineffective in failing to challenge palm-print evidence; (5) the prosecutor 17 committed misconduct by failing to collect and preserve relevant evidence and in vouching for 18 the credibility of its witnesses; (6) the trial court violate his right to due process by admitting 19 evidence of his prior arrests; (7) trial and appellate counsel were ineffective in failing to raise 20 errors in the jury instructions; and (8) the cumulative effect of the foregoing errors caused 21 prejudice. Petitioner’s claims, when liberally construed, are cognizable. Respondent may 22 address the first and sixth claims jointly if he so chooses. 23 CONCLUSION 24 1. The clerk shall mail a copy of this order and the petition with all attachments to the 25 respondent and the respondent's attorney, the Attorney General of the State of California. The 26 clerk shall also serve a copy of this order on the petitioner. 27 28 2. Respondent shall file with the court and serve on petitioner, within ninety days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 2 1 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 2 the claims found cognizable herein. Respondent shall file with the answer and serve on 3 petitioner a copy of all portions of the state trial record that have been transcribed previously 4 and that are relevant to a determination of the issues presented by the petition. 5 6 7 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of the date the answer is filed. 3. Respondent may file, within ninety days, a motion to dismiss on procedural grounds Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 10 court and serve on respondent an opposition or statement of non-opposition within thirty days 11 For the Northern District of California in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 9 United States District Court 8 of the date the motion is filed, and respondent shall file with the court and serve on petitioner a 12 reply within fifteen days of the date any opposition is filed. 13 4. Petitioner is reminded that all communications with the court must be served on 14 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 15 keep the court informed of any change of address and must comply with the court's orders in a 16 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 17 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 18 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 19 20 21 5. Leave to proceed in forma pauperis (docket number 2) is GRANTED in light of petitioner’s lack of funds. IT IS SO ORDERED. 22 Dated: October 28 , 2011. 23 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 G:\PRO-SE\WHA\HC.11\ORR4923.OSC.wpd 3

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