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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTONIO RODRIGUEZ,

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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-13-0015 EMC (pr)

G. J. WANDA, Warden,

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Respondent.
___________________________________/

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I.

INTRODUCTION

Petitioner, an inmate currently housed at Mule Creek State Prison, filed this pro se action

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

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

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the United States District Courts.

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II.

BACKGROUND

The petition provides the following information: Petitioner was convicted in 2010 in

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Monterey County Superior Court of being a "habitual sex offender" under California Penal Code

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§ 667.71. Docket # 1, p. 2. He was sentenced on December 7, 2010 to a term of 170 years to life in

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prison. He appealed. The California Court of Appeal affirmed the conviction in 2010 and the

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California Supreme Court denied the petition for review in 2012. Petitioner also filed unsuccessful

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state 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 alleges the following claims: (1) the admission, pursuant to California Evidence

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Code § 352 and § 1108, of evidence of a 1987 sex offense to prove propensity violated Petitioner's

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rights to due process, a fair trial and equal protection; (2) the CALCRIM 1191 jury instruction

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regarding prior sex offenses violated Petitioner's due process right to proof beyond a reasonable

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doubt; and (3) the 170 years to life imprisonment sentence imposed was cruel and unusual

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punishment prohibited by the Eighth Amendment. Liberally construed, these claims are cognizable

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in a federal habeas action.

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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 June 14, 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 July 12, 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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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.
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Petitioner's in forma pauperis application is GRANTED. (Docket # 2, # 5.)

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: March 27, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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