Sausedo v. Choate

Filing 10

ORDER REOPENING ACTION; ORDER TO SHOW CAUSE. Signed by Judge Richard Seeborg on 3/18/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 3/18/2013)

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1 2 3 *E-Filed 3/18/13* 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 9 SAN FRANCISCO DIVISION 10 11 LEO RAYMOND SAUSEDO, 12 No. C 12-1636 RS (PR) Petitioner, ORDER REOPENING ACTION; 13 v. ORDER TO SHOW CAUSE 14 J. CHOATE, Warden, 15 Respondent. 16 / 17 18 19 INTRODUCTION Petitioner seeks federal habeas relief from his state convictions. The petition for such 20 relief was dismissed for failure to prosecute. Petitioner has submitted a motion for 21 reconsideration (Docket No. 9), which the Court construes as a motion to reopen the action. 22 So construed, the motion is GRANTED. The action is hereby REOPENED and the Clerk is 23 directed to do so. The petition is now before the Court for review pursuant to 28 U.S.C. 24 § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid. 25 Respondent shall file an answer or a dispositive motion on or before June 18, 2013. 26 27 28 No. C 12-1636 RS (PR) ORDER TO SHOW CAUSE BACKGROUND 1 2 According to the petition, in 2008, a Santa Clara Superior Court jury convicted him of 3 spousal rape, inflicting corporal injury on a spouse, and violating a protective order. 4 Consequent to his convictions, petitioner received a sentence of 6 years in state prison. DISCUSSION 5 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 7 custody pursuant to the judgment of a State court only on the ground that he is in custody in 8 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 9 United States District Court For the Northern District of California 6 A district court considering an application for a writ of habeas corpus shall “award the writ 10 or issue an order directing the respondent to show cause why the writ should not be granted, 11 unless it appears from the application that the applicant or person detained is not entitled 12 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 13 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 14 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 As grounds for federal habeas relief, petitioner claims that (1) the trial court violated 16 his right to due process by limiting his cross-examination of a witness; and (2) defense 17 counsel rendered ineffective assistance. Liberally construed, these claims appear to be 18 cognizable on federal habeas review. 19 20 CONCLUSION 1. The Clerk shall serve by certified mail a copy of this order, the petition and all 21 attachments thereto, on respondent and respondent’s counsel, the Attorney General for the 22 State of California. The Clerk shall also serve a copy of this order on petitioner. 23 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) 24 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 25 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 26 be granted based on petitioner’s cognizable claims. Respondent shall file with the answer 27 and serve on petitioner a copy of all portions of the state trial record that previously have 28 2 No. C 12-1636 RS (PR) ORDER TO SHOW CAUSE 1 been transcribed and that are relevant to a determination of the issues presented by the 2 petition. 3 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 4 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 5 answer is filed. 6 4. In lieu of an answer, respondent may file, within ninety (90) days of the date this order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 8 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files 9 United States District Court For the Northern District of California 7 such a motion, petitioner shall file with the Court and serve on respondent an opposition or 10 statement of non-opposition within thirty (30) days of the date the motion is filed, and 11 respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of 12 the date any opposition is filed. 13 14 15 5. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 16 Court and respondent informed of any change of address and must comply with the Court’s 17 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 18 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 19 20 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend. 21 8. The Clerk shall terminate Docket No. 9. 22 IT IS SO ORDERED. 23 DATED: March 18, 2013 RICHARD SEEBORG United States District Judge 24 25 26 27 28 3 No. C 12-1636 RS (PR) ORDER TO SHOW CAUSE

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