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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 SERGIO PABLO, 9 Petitioner, v. ORDER TO SHOW CAUSE 11 For the Northern District of California United States District Court 10 No. C-13-0627 EMC (pr) MARTIN BITTER, Warden, 12 Respondent. ___________________________________/ 13 14 15 16 I. INTRODUCTION Petitioner, an inmate at the Kern Valley State Prison, filed this pro se action seeking a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review 18 pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United 19 States District Courts. 20 21 II. BACKGROUND Petitioner was convicted in Monterey County Superior Court of kidnapping for purposes of 22 robbery, kidnapping to facilitate carjacking, carjacking, second degree robbery, possession of a 23 loaded firearm, and participation in a criminal street gang. See People v. Rico et al., 2011 WL 24 5910073, * 1 (Cal. Ct. App. 2011) Sentence enhancement allegations were found true. Id. 25 Petitioner was sentenced to 25 years to life in prison. He appealed. The California Court of Appeal 26 affirmed the conviction in 2011 and the California Supreme Court denied the petition for review in 27 2012. Petitioner then filed this action. 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 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 11 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 10 United States District Court 9 petitioner Pablo’s motion for a new trial based on juror misconduct,” Docket # 1, p. 14; and (3) 12 cumulative error. Liberally construed, these claims are cognizable in a federal habeas action. 13 IV. CONCLUSION 14 For the foregoing reasons, 15 1. The petition warrants a response. 16 2. The Clerk shall serve by mail a copy of this order, the petition and all attachments 17 thereto upon Respondent and Respondent’s attorney, the Attorney General of the State of California. 18 The Clerk shall also serve a copy of this order on Petitioner. 19 3. Respondent must file and serve upon Petitioner, on or before June 28, 2013, an 20 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 21 cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a 22 copy of all portions of the court proceedings that have been previously transcribed and that are 23 relevant to a determination of the issues presented by the petition. 24 25 26 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. 5. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the 27 Court informed of any change of address and must comply with the Court’s orders in a timely 28 fashion. 2 1 2 3 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.) 4 5 IT IS SO ORDERED. 6 7 Dated: April 23, 2013 8 _________________________ EDWARD M. CHEN United States District Judge 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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