Uckele v. Knipp

Filing 2

ORDER TO SHOW CAUSE. Habeas Answer due by 1/7/2013. Signed by Judge Alsup on 11/6/12. (whalc2, COURT STAFF) (Filed on 11/6/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ANTHONY WINSTON UCKELE, 11 For the Northern District of California United States District Court 10 12 13 14 Petitioner, v. ORDER TO SHOW CAUSE WILLIAM KNIPP, Warden, Respondent. / 15 16 No. C 12-4969 WHA Petitioner Anthony Winston Uckele is currently confined at Mule Creek Sate Prison in 17 Ione. Pursuant to 28 U.S.C. 2254, he has filed a petition for writ of habeas corpus challenging a 18 conviction in California state court. 19 An information was filed on April 27, 2007, amended on November 20, charging 20 petitioner with thirty-six counts of lewd and lascivious acts on a minor under the age of 14. The 21 alleged victim in all counts was the same. On March 14, 2008, following a jury trial, defendant 22 was sentenced to 44 years on counts 1 through 20. Counts 21 through 36 were dismissed on 23 motion of the prosecutor. The California Court of Appeal affirmed the convictions and the 24 California Supreme Court denied review. The United States Supreme Court denied a petition for 25 writ of certiorari. 26 A district court may entertain a habeas petition filed by someone in custody pursuant to a 27 state-court judgment but only on grounds that the petitioner is held in violation of the 28 Constitution, laws or treaties of the United States. 28 U.S.C. 2254(a). A court may “issue an 1 order directing the respondent to show cause why the writ should not be granted,” unless the 2 petition is baseless. 28 U.S.C. 2243. 3 As grounds for federal habeas relief, petitioner claims that (1) because the jurors were not 4 unanimous regarding which acts constituted the charged crimes in counts 3 through 20, his 5 federal constitutional right to due process was violated and (2) the prosecution’s use of improper 6 character evidence from petitioner’s mother violated his federal constitutional right to due 7 process. The issues in the petition are sufficient to require a response. 8 9 11 For the Northern District of California United States District Court 10 1. The CLERK SHALL SERVE by regular mail a copy of this order and the petition with attachments upon respondent and respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this order on petitioner’s counsel. 2. RESPONDENT SHALL FILE WITH THE COURT AND SERVE ON PETITIONER, WITHIN 12 SIXTY DAYS OF THE ISSUANCE OF THIS ORDER, AN ANSWER 13 5 of the Rules governing Section 2254 cases, showing cause why a writ of habeas corpus should 14 not be granted. Respondent shall, by that date, also serve all other materials required by Habeas 15 Local Rule 2254-6(b). The record must be indexed. 16 conforming in all respects to Rule If petitioner wishes to respond to the answer, he shall do so by filing a TRAVERSE WITH 17 THE COURT AND SERVING IT ON RESPONDENT WITHIN THIRTY DAYS OF THE DATE THE 18 ANSWER IS FILED. 19 3. Respondent may file, WITHIN SIXTY DAYS, a motion to dismiss on procedural grounds 20 in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 21 Governing Section 2254 cases. If respondent files such a motion, petitioner shall file with the 22 court and serve on respondent an opposition or statement of non-opposition within THIRTY DAYS 23 of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a 24 reply within FIFTEEN DAYS of the date any opposition is filed. 25 4. Petitioner is reminded that all communications with the Court must be served on 26 respondent by mailing a true and correct copy of the document to respondent’s counsel. 27 Petitioner must keep the Court informed of any change of address and must comply with the 28 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for 2 1 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 2 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 3 4 IT IS SO ORDERED. 5 6 Dated: November 6, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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