Green v. Knipp

Filing 20

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

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL GREEN a/k/a KEVIN BREWER 11 (CDCR # AC5033), United States District Court For the Northern District of California 12 13 14 No. C 12-1689 SI (pr) ORDER TO SHOW CAUSE AND SETTING SCHEDULE Petitioner, v. WILLIAM KNIPP, warden, 15 Respondent. / 16 17 Michael Green a/k/a Kevin Brewer filed this action for a writ of habeas corpus pursuant 18 to 28 U.S.C. ยง 2254 to challenge his conviction in Alameda County Superior Court for 19 continuous sexual abuse of a child and aggravated sexual assault on a child. The court reviewed 20 his amended petition and ordered him to file a second amended petition to correct certain 21 deficiencies. Brewer then filed a second amended petition. The court reviewed the second 22 amended petition, identified several cognizable claims and dismissed Claim 8 with leave to 23 amend. 24 Brewer has filed a document entitled "Petition Amendments" (Docket # 18) in which he 25 proposes to amend three claims in his second amended petition. His proposed amendments are 26 rejected. Brewer's proposed amendment to Claim 3 is dismissed because it urges only a 27 violation of state law. As the court explained in the order of dismissal with leave to amend, 28 federal habeas relief is not available for violations of state law. See Docket # 17, p. 5. His 1 proposed amendment to Claim 4 is dismissed because, with or without his proposed amendment, 2 Claim 4 is patently meritless for the reasons explained in the order of dismissal with leave to 3 amend. Id. at 4. Brewer's proposed amendment to Claim 8 is dismissed because it fails to cure 4 the deficiencies identified in the order of dismissal with leave to amend. Id. at 4-5. Claim 8 is 5 dismissed for failure to identify the facts in support of it. 6 Brewer also has filed a "motion to add another amendment." Docket # 19. The motion 7 is DENIED. The proposed amendment will not be allowed because it simply repeats the existing 8 Claim 1. 9 In light of the determinations made above and in the order of dismissal with leave to 10 amend, the second amended petition is the operative pleading and the following claims remain 11 for adjudication: (1) the evidence was insufficient to support the conviction for continuous 12 sexual abuse of a child, in that there was insufficient evidence that the acts occurred in the 13 applicable time period; (2) the evidence was insufficient to support the conviction of aggravated 14 sexual assault of a child, in that the evidence was insufficient that Brewer accomplished the 15 assault with sufficient force; (3) Brewer's Sixth Amendment right to jury trial and fair notice of 16 the crimes charged was violated in that (a) he received multiple punishments for the same sexual 17 offenses pertaining to the same victim over the same time period, (b) his sentence was enhanced 18 on the basis of a statute that was not in existence at the time of the offense, and (c) the criminal 19 complaint was amended; (5) counsel provided ineffective assistance in failing to conduct a 20 reasonable pre-trial investigation; (6) the denial of Brewer's requests for appointment of counsel 21 (in place of self-representation) on the day set for trial and a week later violated his Sixth 22 Amendment right to counsel; and (7) his rights to due process, to present a defense, and to 23 confront witnesses were violated when the trial court restricted his cross-examination of a key 24 prosecution witness and restricted evidence that the victim previously had made a false 25 accusation of molestation. These claims warrant a response. Claims 4 and 8 have been 26 dismissed. 27 In order to move this action toward resolution, the court sets the following schedule: 28 2 1. 1 The clerk shall serve by certified mail a copy of this order, the second 2 amended petition and all attachments thereto upon respondent and respondent's attorney, the 3 Attorney General of the State of California. The clerk shall also serve a copy of this order on 4 petitioner. 5 2. Respondent must file and serve upon petitioner, on or before April 5, 2013, 6 an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, 7 showing cause why a writ of habeas corpus should not be issued. Respondent must file with the 8 answer a copy of all portions of the court proceedings that have been previously transcribed and 9 that are relevant to a determination of the issues presented by the second amended petition. 10 11 12 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 13 keep the court informed of any change of address and must comply with the court's orders in a 14 timely fashion. 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 3

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