Rico v. Lewis
Filing
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ORDER to Show Cause. Signed by Judge Edward M. Chen on 2/27/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 2/27/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JORGE RICO,
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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-12-6127 EMC (pr)
G. D. LEWIS, Warden,
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Respondent.
___________________________________/
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I.
INTRODUCTION
Petitioner, an inmate at Pelican Bay State Prison, filed this pro se action seeking a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review
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pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United
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States District Courts.
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II.
BACKGROUND
The petition and attachments thereto provide the following information: Petitioner was
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convicted in 2009 in Monterey County Superior Court of robbery, carjacking, and kidnapping for
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robbery. Several sentence enhancement allegations were found true. Petitioner was sentenced to a
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total of 40 years to life in prison. He appealed. The California Court of Appeal reduced the
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sentence to 30 years to life in prison and otherwise affirmed the conviction in 2011. The California
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Supreme Court denied the petition for review in 2012. Petitioner also filed unsuccessful state
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habeas petitions before filing 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 has one claim for habeas relief. Petitioner claims that his federal constitutional
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right to a trial by an impartial jury was violated when the jury considered a document not admitted
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into evidence at trial that revealed the nature of his prior conviction. Liberally construed, the
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petition states a cognizable claim for habeas relief.
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IV.
CONCLUSION
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For the foregoing reasons,
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1.
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 April 29, 2013, 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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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 May 31, 2013.
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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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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, # 6.)
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IT IS SO ORDERED.
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Dated: February 27, 2013
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For the Northern District of California
United States District Court
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_________________________
EDWARD M. CHEN
United States District Judge
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