Green v. Knipp

Filing 20

ORDER TO SHOW CAUSE AND SETTING SCHEDULE 19 (Illston, Susan) (Filed on 1/9/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL GREEN
a/k/a KEVIN BREWER
11 (CDCR # AC5033),
United States District Court
For the Northern District of California

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No. C 12-1689 SI (pr)
ORDER TO SHOW CAUSE AND
SETTING SCHEDULE

Petitioner,
v.
WILLIAM KNIPP, warden,

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Respondent.
/

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Michael Green a/k/a Kevin Brewer filed this action for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254 to challenge his conviction in Alameda County Superior Court for

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continuous sexual abuse of a child and aggravated sexual assault on a child. The court reviewed

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his amended petition and ordered him to file a second amended petition to correct certain

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deficiencies. Brewer then filed a second amended petition. The court reviewed the second

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amended petition, identified several cognizable claims and dismissed Claim 8 with leave to

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amend.

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Brewer has filed a document entitled "Petition Amendments" (Docket # 18) in which he

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proposes to amend three claims in his second amended petition. His proposed amendments are

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rejected. Brewer's proposed amendment to Claim 3 is dismissed because it urges only a

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violation of state law. As the court explained in the order of dismissal with leave to amend,

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federal habeas relief is not available for violations of state law. See Docket # 17, p. 5. His

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proposed amendment to Claim 4 is dismissed because, with or without his proposed amendment,

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Claim 4 is patently meritless for the reasons explained in the order of dismissal with leave to

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amend. Id. at 4. Brewer's proposed amendment to Claim 8 is dismissed because it fails to cure

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the deficiencies identified in the order of dismissal with leave to amend. Id. at 4-5. Claim 8 is

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dismissed for failure to identify the facts in support of it.

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Brewer also has filed a "motion to add another amendment." Docket # 19. The motion

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is DENIED. The proposed amendment will not be allowed because it simply repeats the existing

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Claim 1.

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In light of the determinations made above and in the order of dismissal with leave to

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amend, the second amended petition is the operative pleading and the following claims remain

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for adjudication: (1) the evidence was insufficient to support the conviction for continuous

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sexual abuse of a child, in that there was insufficient evidence that the acts occurred in the

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applicable time period; (2) the evidence was insufficient to support the conviction of aggravated

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sexual assault of a child, in that the evidence was insufficient that Brewer accomplished the

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assault with sufficient force; (3) Brewer's Sixth Amendment right to jury trial and fair notice of

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the crimes charged was violated in that (a) he received multiple punishments for the same sexual

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offenses pertaining to the same victim over the same time period, (b) his sentence was enhanced

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on the basis of a statute that was not in existence at the time of the offense, and (c) the criminal

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complaint was amended; (5) counsel provided ineffective assistance in failing to conduct a

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reasonable pre-trial investigation; (6) the denial of Brewer's requests for appointment of counsel

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(in place of self-representation) on the day set for trial and a week later violated his Sixth

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Amendment right to counsel; and (7) his rights to due process, to present a defense, and to

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confront witnesses were violated when the trial court restricted his cross-examination of a key

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prosecution witness and restricted evidence that the victim previously had made a false

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accusation of molestation. These claims warrant a response. Claims 4 and 8 have been

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dismissed.

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In order to move this action toward resolution, the court sets the following schedule:

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1.

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The clerk shall serve by certified mail a copy of this order, the second

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amended petition and all attachments thereto upon respondent and respondent's attorney, the

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Attorney General of the State of California. The clerk shall also serve a copy of this order on

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petitioner.

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2.

Respondent must file and serve upon petitioner, on or before April 5, 2013,

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an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases,

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showing cause why a writ of habeas corpus should not be issued. Respondent must file with the

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answer a copy of all portions of the court proceedings that have been previously transcribed and

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

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3.

If petitioner wishes to respond to the answer, he must do so by filing a

traverse with the court and serving it on respondent on or before May 3, 2013.
4.

Petitioner is responsible for prosecuting this case. Petitioner must promptly

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keep the court informed of any change of address and must comply with the court's orders in a

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timely fashion.

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5.

Petitioner is cautioned that he must include the case name and case number

for this case on any document he submits to this court for consideration in this case.
IT IS SO ORDERED.
DATED: January 9, 2013
SUSAN ILLSTON
United States District Judge

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