Elliott v. Swarthout et al

Filing 3

ORDER TO SHOW CAUSE. Respondent to file Answer with the Court and serve upon Petitioner by 9/28/2012. Petitioner to file Traverse with the Court and serve upon Respondent by 11/2/2012. Signed by Judge Edward M. Chen on 7/18/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRAVIS NEAL ELLIOTT,

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Petitioner,
v.

ORDER TO SHOW CAUSE

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For the Northern District of California

United States District Court

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No. C-12-2568 EMC (pr)

GARY SWARTHOUT, Warden,

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Respondent.
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I.

INTRODUCTION

Travis Neal Elliott, an inmate at the California State Prison - Solano, filed this pro se action

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for

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review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts.

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II.

BACKGROUND

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The petition and attachments thereto provide the following information: Elliott was

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convicted in Contra Costa County Superior Court of first degree murder, and sentence enhancement

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allegations that he had personally used a dangerous weapon in the commission of the offense and

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had suffered prior convictions were found true. On December 12, 2008, he was sentenced to 31

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years to life in prison.

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Elliott appealed. The judgment of conviction was affirmed in the California Court of Appeal

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in 2008. His petition for review was denied by the California Supreme Court in 2011. Elliott then

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filed this action.

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III.

DISCUSSION

This Court may entertain a petition for writ of habeas corpus "in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall "award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

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For the Northern District of California

United States District Court

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Cir. 1990).
The petition alleges the following claims: (1) Petitioner's federal rights to due process and a

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fair trial were violated by the introduction of "evidence of the transfer of Scales' house to Shanelle to

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prove that Elliott murdered Irving because he had been effectively disinherited," Docket # 1, p. 21;

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(2) Petitioner's constitutional rights to due process and a fair trial were violated when the trial court

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denied his motion for a mistrial "once a prosecution witness, in contravention of the trial court's

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ruling, blurted out that Elliott had been to prison," id. at 29, 30; (3) "it was prosecutorial misconduct

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for the prosecutor not to inform his witnesses of the trial court's ruling that they not mention Elliott's

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prison sentence," id. at 33; (4) "trial counsel rendered ineffective assistance of counsel by drafting a

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prejudicial stipulation to be read to the jury," id. at 34; (5) trial counsel provided ineffective

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assistance of counsel if his "objections to the introduction of evidence of the title transfer were

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insufficient to preserve the issue [that] the evidence should have been excluded under Evidence

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Code Section 352 and on federal constitutional grounds," id. at 43; and (6) cumulative error, id. at

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45. Liberally construed, these claims for constitutional violations are cognizable in a federal habeas

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proceeding.

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IV.

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For the foregoing reasons,

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1.

CONCLUSION

The petition warrants a response.

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2.

The Clerk shall serve by mail a copy of this order, the petition and all attachments

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thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California.

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

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3.

Respondent must file and serve upon petitioner, on or before September 28, 2012, an

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

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

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

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relevant to a determination of the issues presented by the petition.

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For the Northern District of California

United States District Court

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4.

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 November 2, 2012.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

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Court informed of any change of address and must comply with the Court's orders in a timely

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fashion.

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6.

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.
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Petitioner's in forma pauperis application is GRANTED. (Docket # 2.)

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IT IS SO ORDERED.

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Dated: July 18, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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