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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 TYLER REDICK, 11 For the Northern District of California United States District Court 10 No. C 12-0337 WHA (PR) Petitioner, ORDER TO SHOW CAUSE; REOPENING FILE v. 12 MARTIN BITER, Warden, 13 Respondent. / 14 15 INTRODUCTION 16 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. 2254. His motion to stay the petition while he exhausted certain 18 claims was granted. He has filed an amended petition and a notice that he has completed the 19 process of exhausting his claims in the California Supreme Court. Respondent is ordered to 20 show cause why the petition should not be granted based on the five cognizable claims in the 21 amended petition. 22 STATEMENT 23 In 2009, petitioner was convicted in San Mateo County Superior Court after a jury found 24 him guilty of robbery and attempted carjacking, and enhancements for firearms were found true. 25 He was sentenced to a term of 18 years and two months in state prison. On direct review, the 26 California Court of Appeal affirmed the conviction and sentence, and the California Supreme 27 Court denied a petition for review. The California Supreme Court also denied a petition for a 28 writ of habeas corpus. 1 2 3 ANALYSIS A. STANDARD OF REVIEW custody pursuant to the judgment of a State court only on the ground that he is in custody in 6 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 7 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 8 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 9 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 10 court must “specify all the grounds for relief which are available to the petitioner ... and shall 11 For the Northern District of California This court may entertain a petition for writ of habeas corpus "in behalf of a person in 5 United States District Court 4 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 12 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 13 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 14 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 15 688, 689 (1st Cir. 1970)). 16 B. LEGAL CLAIMS 17 Petitioner claims: (1) that the sentence he received constitutes cruel and unusual 18 punishment; (2) that he received ineffective assistance of trial counsel; (3) that the prosecution 19 withheld important evidence until the time of trial, preventing petitioner from preparing and 20 presenting a meaningful defense, from effectively conducting plea negotiations and from having 21 a sufficient basis for deciding whether or not to plead guilty; (4) that several witnesses testified 22 falsely; and (5) that the prosecution knowingly presented false testimony by its principal 23 witnesses. When liberally construed, these claims are cognizable, and an order to show cause 24 will issue. CONCLUSION 25 26 In light of the foregoing, 27 1. The clerk shall mail a copy of this order and the amended petition with all 28 attachments to the respondent and the respondent's attorney, the Attorney General of the State 2 1 of California. The clerk shall also serve a copy of this order on the petitioner. 2 2. Respondent shall file with the court and serve on petitioner, within 84 days of the 3 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 4 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 5 the claims found cognizable herein. Respondent shall file with the answer and serve on 6 petitioner a copy of all portions of the state trial record that have been transcribed previously 7 and that are relevant to a determination of the issues presented by the petition. 8 9 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 11 For the Northern District of California United States District Court 10 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 12 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 13 court and serve on respondent an opposition or statement of non-opposition within 28 days of 14 the date the motion is filed, and respondent shall file with the court and serve on petitioner a 15 reply within 14 days of the date any opposition is filed. 16 The clerk shall administratively reopen the file. 17 IT IS SO ORDERED. 18 Dated: January 9 , 2013. 19 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\HC.12\REDICK0337.OSC.wpd 3

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