Arizmendi v. Brazelton
Filing
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ORDER TO SHOW CAUSE and Order Granting 4 MOTION for Leave to Proceed in forma pauperis filed by Alexander B. Arizmendi. Habeas Answer due by 4/5/2013.. Signed by Judge Charles R. Breyer on 2/1/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/4/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALEXANDER B. ARIZMENDI, AE0789, )
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Petitioner,
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vs.
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P. BRAZELTON, Warden,
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Respondent.
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No. C 12-4555 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 4)
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Petitioner, a state prisoner incarcerated at Pleasant Valley State Prison, has
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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254
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challenging a conviction and sentence from Santa Clara County Superior Court.
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He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
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BACKGROUND
Petitioner was convicted by a jury of possession of an assault weapon and
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criminal threats in a San Jose case and of possession of an assault weapon,
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negligent discharge of a firearm and being under the influence of a controlled
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substance in a Mountain View case. It also found true allegations that petitioner
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personally used an assault weapon in committing two of the counts for the
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purposes of a sentence enhancement. On June 22, 2010, he was sentenced to 11
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years and four months in state prison.
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Petitioner unsuccessfully appealed his conviction to the California Court
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of Appeal and the Supreme Court of California. He also unsuccessfully sought
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habeas corpus relief from the state courts. On June 13, 2012, the Supreme Court
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of California denied his last state petition for a writ of habeas corpus.
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DISCUSSION
A.
Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf
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of a person in custody pursuant to the judgment of a State court only on the
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ground that he is in custody in violation of the Constitution or laws or treaties of
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the United States." 28 U.S.C. § 2254(a).
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It shall "award the writ or issue an order directing the respondent to show
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cause why the writ should not be granted, unless it appears from the application
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that the applicant or person detained is not entitled thereto." Id. § 2243.
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B.
Claims
Petitioner seeks federal habeas corpus relief by raising several claims,
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including improper joinder of the San Jose and Mountain view cases, convictions
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for possession of assault weapon violate Second Amendment right to bear arms,
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ineffective assistance of counsel, illegal sentence enhancement, insufficient
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evidence to support criminal threats and negligent discharge of a firearm
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convictions, and prosecutorial misconduct. Liberally construed, the claims
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appear cognizable under § 2254 and merit an answer from respondent. See
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Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must
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construe pro se petitions for writs of habeas corpus liberally).
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CONCLUSION
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For the foregoing reasons and for good cause shown,
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1.
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Petitioner's request to proceed in forma pauperis (docket # 2) is
GRANTED.
2.
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The clerk shall serve a copy of this order and the petition and all
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attachments thereto on respondent and respondent's attorney, the Attorney
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General of the State of California. The clerk also shall serve a copy of this order
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on petitioner.
3.
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Respondent shall file with the court and serve on petitioner, within
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60 days of the issuance of this order, an answer conforming in all respects to Rule
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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of
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habeas corpus should not be granted. Respondent shall file with the answer and
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serve on petitioner a copy of all portions of the state trial record that have been
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transcribed previously and that are relevant to a determination of the issues
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presented by the petition.
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If petitioner wishes to respond to the answer, he shall do so by filing a
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traverse with the court and serving it on respondent within 30 days of his receipt
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of the answer.
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4.
Respondent may file a motion to dismiss on procedural grounds in
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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the
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Rules Governing Section 2254 Cases. If respondent files such a motion,
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petitioner must serve and file an opposition or statement of non-opposition not
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more than 28 days after the motion is served and filed, and respondent must serve
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and file a reply to an opposition not more than 14 days after the opposition is
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served and filed.
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5.
Petitioner is reminded that all communications with the court must
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be served on respondent by mailing a true copy of the document to respondent's
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counsel. Petitioner must also keep the court and all parties informed of any
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change of address.
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SO ORDERED.
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DATED:
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Feb. 1, 2013
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\HC.12\Arizmendi, A.12-4555.osc.wpd
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