Love v. Hedgepeth

Filing 4

ORDER CONSOLIDATING CLAIMS INTO C-11-6283 AND CLOSING CASE C-12-1671; Granting re 2 MOTION for Leave to Proceed in forma pauperis filed by Kennard Isaiah Love, AND ORDER TO SHOW CAUSE, Show Cause Response due by 6/12/2012. Signed by Judge Charles R. Breyer on 4/12/12. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 4/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KENNARD ISAIAH LOVE, AA-7389, )
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Petitioner,
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vs.
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ANTHONY HEDGPETH, Warden,
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Respondent.
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No. C 11-6283 CRB (PR)
No. C 12-1671 CRB (PR)
ORDER CONSOLIDATING
CLAIMS INTO CASE C 116283 AND CLOSING CASE
C 12-1671; AND ORDER TO
SHOW CAUSE
(Docket # 2)

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Petitioner, a state prisoner incarcerated at Salinas Valley State Prison, has

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filed two pro se petitions for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a conviction from Santa Clara County Superior Court. He also seeks

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to proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND

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Petitioner was convicted by a jury of four counts of second degree

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robbery, four counts of assault with a firearm, two counts of making criminal

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threats and two counts of possession of a firearm by a felon. The jury also found

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true allegations that petitioner personally used a handgun during the commission

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of the robbery, assault and criminal threats offenses. On August 14, 2009,

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petitioner was sentenced to 28 years in state prison.

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Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and the Supreme Court of California. He also unsuccessfully sought

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habeas relief from the state courts. On January 12, 2012, the Supreme Court of

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California denied his final petition for state habeas relief.

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DISCUSSION
A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

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Claims
Petitioner's first petition, filed on December 14, 2011 as civil case number

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11-6283, raises one claim for relief – improper exclusion of evidence. His

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second petition, filed on April 4, 2012 as civil case number 12-1671, raises two

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additional (and newly exhausted) claims – denial of right to confront witnesses

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and ineffective assistance of counsel.

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Good cause appearing, the three claims will be consolidated into one

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action and will proceed under the earlier filed case, 11-6283. The clerk is

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instructed to file a copy of the petition in case number 12-1671 into case number

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11-6283, and to close case number 12-1671 and terminate all pending motions

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therein as moot. All future filings shall be in case number 11-6283 only.

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Liberally construed, petitioner's three claims – improper exclusion of
evidence, denial of right to confront witnesses and ineffective assistance of

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counsel – appear cognizable under § 2254 and merit an answer from respondent.

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See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must

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construe pro se petitions for writs of habeas corpus liberally).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 2) is

GRANTED.
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The clerk shall serve a copy of this order and the petitions and all

attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

Respondent may file a motion to dismiss on procedural grounds in

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

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED: April 12, 2012
CHARLES R. BREYER
United States District Judge

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