Rodriguez v. Wanda

Filing 7

ORDER TO SHOW CAUSE. Respondent must file Habeas Answer by 6/14/2013. Petitioner may file Traverse by 7/12/2013. Signed by Judge Edward M. Chen on 3/27/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 3/27/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ANTONIO RODRIGUEZ, 9 Petitioner, v. ORDER TO SHOW CAUSE 11 For the Northern District of California United States District Court 10 No. C-13-0015 EMC (pr) G. J. WANDA, Warden, 12 Respondent. ___________________________________/ 13 14 15 16 I. INTRODUCTION Petitioner, an inmate currently housed at Mule Creek State Prison, filed this pro se action 17 seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court 18 for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in 19 the United States District Courts. 20 21 II. BACKGROUND The petition provides the following information: Petitioner was convicted in 2010 in 22 Monterey County Superior Court of being a "habitual sex offender" under California Penal Code 23 § 667.71. Docket # 1, p. 2. He was sentenced on December 7, 2010 to a term of 170 years to life in 24 prison. He appealed. The California Court of Appeal affirmed the conviction in 2010 and the 25 California Supreme Court denied the petition for review in 2012. Petitioner also filed unsuccessful 26 state habeas petitions before filing this action. 27 28 1 2 III. DISCUSSION This Court may entertain a petition for writ of habeas corpus "in behalf of a person in 3 custody pursuant to the judgment of a State court only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A 5 district court considering an application for a writ of habeas corpus shall "award the writ or issue an 6 order directing the respondent to show cause why the writ should not be granted, unless it appears 7 from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. 8 Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, 9 palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th 11 For the Northern District of California United States District Court 10 Cir. 1990). The petition alleges the following claims: (1) the admission, pursuant to California Evidence 12 Code § 352 and § 1108, of evidence of a 1987 sex offense to prove propensity violated Petitioner's 13 rights to due process, a fair trial and equal protection; (2) the CALCRIM 1191 jury instruction 14 regarding prior sex offenses violated Petitioner's due process right to proof beyond a reasonable 15 doubt; and (3) the 170 years to life imprisonment sentence imposed was cruel and unusual 16 punishment prohibited by the Eighth Amendment. Liberally construed, these claims are cognizable 17 in a federal habeas action. 18 IV. CONCLUSION 19 For the foregoing reasons, 20 1. The petition warrants a response. 21 2. The Clerk shall serve by mail a copy of this order, the petition and all attachments 22 thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California. 23 The Clerk shall also serve a copy of this order on Petitioner. 24 3. Respondent must file and serve upon Petitioner, on or before June 14, 2013, an 25 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 26 cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a 27 copy of all portions of the court proceedings that have been previously transcribed and that are 28 relevant to a determination of the issues presented by the petition. 2 1 2 3 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 July 12, 2013. 5. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the 4 Court informed of any change of address and must comply with the Court's orders in a timely 5 fashion. 6 7 8 6. Petitioner is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case. 7. Petitioner's in forma pauperis application is GRANTED. (Docket # 2, # 5.) 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: March 27, 2013 13 _________________________ EDWARD M. CHEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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