Melendez v. Hedgepath

Filing 5

ORDER TO SHOW CAUSE, Motions granted 2 MOTION for Leave to Proceed in forma pauperis filed by Julio Melendez, 4 MOTION for Leave to Proceed in forma pauperis filed by Julio Melendez. Habeas Answer due by 8/6/2012.. Signed by Judge Charles R. Breyer on 6/1/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JULIO MELENDEZ, AA-7292,
Petitioner,

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vs.

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A. HEDGPETH, Warden,

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Respondent.

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No. C 12-0386 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 4)

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Petitioner, a state prisoner at Salinas Valley State Prison (SVSP), has filed

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a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction from San Francisco County Superior Court. He also seeks to proceed

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

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BACKGROUND
Petitioner was convicted by a jury of first degree murder and being a felon

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in possession of a firearm, and found true the enhancement allegation that he of

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personal use of a firearm. In a bifurcated proceeding, the court found true the

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allegation that petitioner had served two prior prison terms. On September 28,

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2009, petitioner was sentenced to 35 years to life in state prison.

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On June 15, 2011, the California Court of Appeal affirmed the judgment

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of the trial court and, on September 21, 2011, the Supreme Court of California

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denied review. The instant federal habeas petition followed.
DISCUSSION

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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.

Claims

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Petitioner seeks federal habeas relief by raising five claims: (1) improper

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admission of hearsay evidence in violation of petitioner's right to confrontation;

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(2) improper denial of mistrial and new trial motion based on witness

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misconduct; (3) ineffective assistance of counsel based on counsel's failure to

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object to improper testimony by a police officer regarding a witness's veracity;

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(4) improper admission of testimony by a police officer opining that petitioner

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was guilty; and (5) prosecutorial misconduct based on the prosecutor's references

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to petitioner's silence and ineffective assistance of counsel based on counsel's

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failure to object to the prosecutor's references. Liberally construed, the claims

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

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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).

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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 & 4) is

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

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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.
3.

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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 must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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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: June 1, 2012
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.12\Melendez, J.12-0386.osc.wpd

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