Greenlaw v. Mitchell et al

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge JEFFREY S. WHITE on 5/1/12. (jjoS, COURT STAFF) (Filed on 5/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROSEMARY GREENLAW,

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Petitioner,
vs.
SHEILA MITCHELL, et al.,
Respondents.

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No. C 12-1598 JSW (PR)
ORDER TO SHOW CAUSE)

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INTRODUCTION
Petitioner is currently on probation based upon her conviction in state court. She
has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. This order directs
Respondent to show cause why the petition should not be granted.
BACKGROUND
In 2008, Petitioner was convicted in Santa Clara County Superior Court of two
counts of recording a false instrument. The trial court sentenced her to a term of three
years on probation, a fine, community service, and to pay victim restitution. On appeal,
one of the counts was reversed, and on December 2, 2010, the trial court sentenced her to
two years of probation, a fine, community service, and to pay victim restitution. Her
appeal of that decision to California Court of Appeal failed, and the California Supreme
Court subsequently denied a petition for review.

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

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

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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

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

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II

Legal Claims

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As grounds for federal habeas relief, Petitioner claims: (1) that she is entitled to a

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new trial after the Court of Appeal ruled that one of her counts should be reversed based

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upon the improper admission of evidence; (2) that her sentence was not supported under

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state law and violated her rights under the Confrontation Clause; (3) that she is “entitled

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to have her record cleared;” (4) that evidence of “corporate minutes” was not

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“trustworthy;” (5) that her Sixth Amendment right to counsel was violated when the trial

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court denied her request for substitution of counsel; (6) that her fine was imposed as

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punishment for a crime of which she was acquitted; (7) that the restitution award was

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improper because she committed a “victimless crime;” (8) that the restitution was

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improper because she was acquitted of causing any loss; and (9) that the probation

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department is keeping her on probation after her original probation term has expired.

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Petitioner’s first claim and part of her second claim are not cognizable because

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they are only based upon state law. A federal habeas writ is unavailable for violations of

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state law or for alleged error in the interpretation or application of state law.

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See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011); 28 U.S.C. § 2254(a).

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Consequently, the first claim will be dismissed, as will the portion of the second claim

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that is based upon state law. The portion of Petitioner’s second claim that asserts a

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violation of his rights under the Confrontation Clause is, when liberally construed,

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cognizable, and Respondent will be ordered to respond to that issue.
Petitioner’s third claim, in which she seeks to have her “record cleared” seeks a

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remedy that may be available if her petition is successful, but it does not state an

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independent claim for habeas relief. If her other claims are successful, her conviction

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may be vacated, but there is no need for her to have an independent claim to clear her

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record. Her third claim will be dismissed.

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Petitioner’s fourth claim is liberally construed to assert that untrustworthy evidence

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was admitted, that it rendered her trial fundamentally unfair, and that this violated her

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right to due process. So construed, the claim is cognizable. Petitioner’s fifth and ninth

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claims are, when liberally construed, also cognizable.

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Petitioner’s sixth, seventh, and eighth claims challenging the imposition of

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restitution and fines are not cognizable under 28 U.S.C. § 2254. See Bailey v. Hill, 599

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F.3d 976, 978-980 (9th Cir. 2010) (second “custody” requirement of Section 2254 not

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satisfied for claim challenging restitution order because success might cause money

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award to be set aside but would not affect any restraint on petitioner's liberty). These

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claims will be dismissed.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. Petitioner’s first, third, sixth, seventh and eight claims, as described above, are

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DISMISSED. Petitioner’s second claims is DISMISSED IN PART, as described above.

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The remainder of her claims are cognizable.

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2. The Clerk shall serve by certified mail a copy of this order and the petition, and

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

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3. Respondent shall file with the Court and serve on Petitioner, within ninety (90)

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

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted based upon the claims found cognizable above. Respondent shall file with

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the answer and serve on Petitioner a copy of all portions of the state trial record that have

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

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presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by

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filing a traverse with the Court and serving it on Respondent within thirty (30) days of

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the date the answer is filed.

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4. Respondent may, within ninety (90) days, file a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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Rule 4 of the 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 statement of

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non-opposition within thirty (30) days of the date the motion is filed, and Respondent

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shall file with the Court and serve on Petitioner a reply within fifteen (15) days of the date

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any opposition is filed.

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5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: May 1, 2012
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ROSEMARY BELLE GREENLAW,

Case Number: CV12-01598 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
SHEILA MITCHELL, ET AL. et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 1, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Rosemary Belle Greenlaw
825 Villa Avenue
San Jose, CA 95126-2461
Dated: May 1, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk