Redick v. Biter

Filing 12

ORDER TO SHOW CAUSE Habeas Answer due by 4/3/2013. Signed by Judge William Alsup on 1/9/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 1/9/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TYLER REDICK,

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For the Northern District of California

United States District Court

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No. C 12-0337 WHA (PR)

Petitioner,

ORDER TO SHOW CAUSE;
REOPENING FILE

v.

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MARTIN BITER, Warden,

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Respondent.
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INTRODUCTION

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254. His motion to stay the petition while he exhausted certain

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claims was granted. He has filed an amended petition and a notice that he has completed the

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process of exhausting his claims in the California Supreme Court. Respondent is ordered to

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show cause why the petition should not be granted based on the five cognizable claims in the

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amended petition.

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STATEMENT

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In 2009, petitioner was convicted in San Mateo County Superior Court after a jury found

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him guilty of robbery and attempted carjacking, and enhancements for firearms were found true.

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He was sentenced to a term of 18 years and two months in state prison. On direct review, the

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California Court of Appeal affirmed the conviction and sentence, and the California Supreme

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Court denied a petition for review. The California Supreme Court also denied a petition for a

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writ of habeas corpus.

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ANALYSIS
A.

STANDARD OF REVIEW

custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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For the Northern District of California

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

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United States District Court

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

LEGAL CLAIMS

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Petitioner claims: (1) that the sentence he received constitutes cruel and unusual

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punishment; (2) that he received ineffective assistance of trial counsel; (3) that the prosecution

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withheld important evidence until the time of trial, preventing petitioner from preparing and

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presenting a meaningful defense, from effectively conducting plea negotiations and from having

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a sufficient basis for deciding whether or not to plead guilty; (4) that several witnesses testified

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falsely; and (5) that the prosecution knowingly presented false testimony by its principal

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witnesses. When liberally construed, these claims are cognizable, and an order to show cause

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will issue.
CONCLUSION

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In light of the foregoing,

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1. The clerk shall mail a copy of this order and the amended petition with all

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attachments to the respondent and the respondent's attorney, the Attorney General of the State
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of California. The clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within 84 days of the

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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the claims found cognizable herein. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state trial record that have been transcribed previously

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and that are relevant to a determination of the issues presented by the petition.

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court and serving it on respondent within 28 days of the date the answer is filed.
3. Respondent may file, within 84 days, a motion to dismiss on procedural grounds in

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For the Northern District of California

United States District Court

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

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

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Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the

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court and serve on respondent an opposition or statement of non-opposition within 28 days of

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the date the motion is filed, and respondent shall file with the court and serve on petitioner a

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reply within 14 days of the date any opposition is filed.

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The clerk shall administratively reopen the file.

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IT IS SO ORDERED.

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Dated: January

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, 2013.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\WHA\HC.12\REDICK0337.OSC.wpd

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