Pablo v. Bitter

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer due by 6/28/2013. Petitioner's Traverse due by 7/26/2013. Signed by Judge Edward M. Chen on 4/23/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/23/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SERGIO PABLO,

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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-13-0627 EMC (pr)

MARTIN BITTER, Warden,

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Respondent.
___________________________________/

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I.

INTRODUCTION

Petitioner, an inmate at the Kern Valley 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

Petitioner was convicted in Monterey County Superior Court of kidnapping for purposes of

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robbery, kidnapping to facilitate carjacking, carjacking, second degree robbery, possession of a

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loaded firearm, and participation in a criminal street gang. See People v. Rico et al., 2011 WL

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5910073, * 1 (Cal. Ct. App. 2011) Sentence enhancement allegations were found true. Id.

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Petitioner was sentenced to 25 years to life in prison. He appealed. The California Court of Appeal

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affirmed the conviction in 2011 and the California Supreme Court denied the petition for review in

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2012. Petitioner then filed 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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The petition alleges the following claims: (1) Petitioner’s Sixth and Fourteenth Amendment

new trial that was made on the grounds of juror misconduct; (2) “the trial court erred in denying

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For the Northern District of California

rights to an impartial jury and a fair trial were violated when the trial court denied his motion for

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United States District Court

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petitioner Pablo’s motion for a new trial based on juror misconduct,” Docket # 1, p. 14; and (3)

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cumulative error. Liberally construed, these claims are cognizable 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 28, 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 26, 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.)

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IT IS SO ORDERED.

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Dated: April 23, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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