Villarreal v. Chavez

Filing 3

ORDER TO SHOW CAUSE Habeas Answer due by 5/20/2013.. Signed by Judge Alsup on 3/19/2013. (whalc2, COURT STAFF) (Filed on 3/19/2013) (Additional attachment(s) added on 3/19/2013: # 1 Certificate/Proof of Service) (dt, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERT D. VILLARREAL,

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For the Northern District of California

United States District Court

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No. C 13-0416 WHA

Petitioner,
v.

ORDER TO SHOW CAUSE

FRANK X. CHAVEZ, Warden,
Respondent.
/
Petitioner Robert D. Villarreal is currently confined at the Sierra Conservation Center in

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Jamestown. Pursuant to 28 U.S.C. 2254, he has filed a petition for writ of habeas corpus

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challenging a conviction in California state court.

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Petitioner was charged with second degree burglary under California Penal Code Section

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459, five “strike prior” allegations under Section 667(e)–(i), and five “prison prior” allegations

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under Section 667.5(d). Three of the “prison priors” alleged were also alleged as “strike priors.”

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On July 19, 2006, following a jury verdict of guilty on the second degree burglary charge and

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finding as true the prior conviction allegations, petitioner was sentenced to a prison term of thirty

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years to life. Petitioner appealed his conviction to the California Court of Appeal, which

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affirmed the conviction and sentence with the exception of petitioner’s challenge regarding the

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prior serious felony allegations pertaining to petitioner’s 1982 burglary conviction. As to that

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issue, the case was remanded for resentencing unless the prosecutor elected to retry those

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allegations. Petitioner sought review in the California Supreme Court of the portions of the
Court of Appeal’s order against him. The state supreme court denied review. While petitioner’s

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appeal was pending, petitioner’s case was remanded to the trial court for resentencing. After a

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new sentencing hearing, the trial court again sentenced petitioner to a term of thirty years to life.

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Petitioner appealed this judgment to the Court of Appeal, which affirmed the sentence. The

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California Supreme Court denied review.

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A district court may entertain a habeas petition filed by someone in custody pursuant to a

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state-court judgment but only on grounds that the petitioner is held in violation of the

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Constitution, laws or treaties of the United States. 28 U.S.C. 2254(a). A court may “issue an

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order directing the respondent to show cause why the writ should not be granted,” unless the

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petition is baseless. 28 U.S.C. 2243.
As grounds for federal habeas relief, petitioner claims that his right to effective assistance

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For the Northern District of California

United States District Court

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of counsel under the Sixth and Fourteenth Amendments was violated on the grounds that (1) trial

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counsel failed to object at trial to the admission of petitioner’s prior convictions for drug

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possession as impeachment; (2) trial counsel failed to “press for” bifurcation of the trial as to the

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prior conviction allegations when the trial court ruled on the issue; (3) trial counsel failed to

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move for the redaction of prejudicial information from documents admitted at trial to prove the

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prior conviction enhancements; and (4) trial counsel failed to object to prosecutorial misconduct

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during the prosecutor’s closing argument, including the prosecutor’s assertion of facts not in

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evidence and comments about the role of the prosecutor and defense counsel. Petitioner claims

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that his right to due process under the Fifth and Fourteenth Amendments was violated by the

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cumulative prejudice resulting from trial counsel’s errors as listed above. Petitioner further

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claims that his right to due process under the Fifth and Fourteenth Amendments was violated by

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the trial court’s instruction to the jury based on California Criminal Jury Instructions No. 376.

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Lastly, petitioner claims that his sentence of thirty years to life under California’s Three Strikes

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Law violated the Eighth Amendment.

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The issues in the petition are sufficient to require a response.

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1. The CLERK SHALL SERVE by regular mail a copy of this order and the petition with

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attachments upon respondent and respondent’s attorney, the Attorney General of the State of

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California. The Clerk shall also serve a copy of this order on petitioner’s counsel.
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2. RESPONDENT SHALL FILE WITH THE COURT AND SERVE ON PETITIONER, WITHIN

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SIXTY DAYS OF THE ISSUANCE OF THIS ORDER, AN ANSWER

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5 of the Rules governing Section 2254 cases, showing cause why a writ of habeas corpus should

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not be granted. Respondent shall, by that date, also serve all other materials required by Habeas

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Local Rule 2254-6(b). The record must be indexed.

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conforming in all respects to Rule

If petitioner wishes to respond to the answer, he shall do so by filing a TRAVERSE WITH

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THE COURT AND SERVING IT ON RESPONDENT WITHIN THIRTY DAYS OF THE DATE THE

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ANSWER IS FILED.

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3. Respondent may file, WITHIN SIXTY DAYS, a motion to dismiss on procedural grounds
in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

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For the Northern District of California

United States District Court

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Governing Section 2254 cases. If respondent files such a motion, petitioner shall file with the

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court and serve on respondent an opposition or statement of non-opposition within THIRTY DAYS

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of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a

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reply within FIFTEEN DAYS of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the Court must be served on

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respondent by mailing a true and correct copy of the document to respondent’s counsel.

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Petitioner must keep the Court informed of any change of address and must comply with the

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,

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104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.

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Dated: March 19, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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