Fernandez v. Lewis et al

Filing 2

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 9/16/2013. Traverse due by 10/16/2013. Signed by Judge Richard Seeborg on 6/13/13. (cl, COURT STAFF) (Filed on 6/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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No. C 13-2296 RS

ROLANDO FERNANDEZ,

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Petitioner,
ORDER TO SHOW CAUSE

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v.
GREG LEWIS, Warden, Pelican Bay State
Prison,

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Respondent.
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I.

INTRODUCTION

Petitioner Rolando Fernandez filed this action for writ of habeas corpus pursuant to 28

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U.S.C. 2254. At the time of filing his petition, Fernandez was in the custody of respondent, Greg

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Lewis, Warden at Pelican Bay State Prison pending the completion of his sentence imposed by the

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California Superior Court. His petition is now before the Court for review pursuant to 28 U.S.C. §

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2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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II.

BACKGROUND

According to the petition, on July 10, 2007, a jury convicted petitioner of two counts of

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murder in violation of California Penal Code § 187(a), and, with respect to both counts,

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enhancements for personally using a firearm causing death in violation of California Penal Code §

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12022.53(d). He had also been charged with, but was acquitted of, the special circumstance of
NO. C 13-2296-RS
ORDER

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committing multiple murder in violation of California Penal Code § 190.2(a)(3). The trial court

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sentenced him to 80 years to life, comprised of consecutive terms on each murder count of 15 years

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to life, plus 25 years to life for the firearm use enhancement. Petitioner was given credit for 945

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days of pretrial confinement. The trial court imposed a $200 restitution fine under California Penal

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Code § 1202.4, and ordered petitioner to pay victim compensation of $14,015.72. The California

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appellate court affirmed the conviction and the California Supreme Court subsequently denied the

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petition for review. This federal habeas petition followed.
III.

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DISCUSSION

For the Northern District of California

A writ of habeas corpus may be entertained “in behalf of a person in custody pursuant to the

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United States District Court

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judgment of a State court only on the ground that he is in custody in violation of the Constitution or

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laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court considering an

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application for a writ of habeas corpus shall “award the writ or issue an order directing the

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respondent to show cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal

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is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible,

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or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner alleges: (1) failure to instruct the jury on heat

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of passion manslaughter; (2) refusal to admit evidence of another charged individual’s gang

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membership; and (3) improper limitation on the use of the self-defense jury instruction. Liberally

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construed, these claims appear to be cognizable in a federal habeas action.
IV.

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1.

CONCLUSION

Counsel for petitioner shall serve a copy of this Order and the petition and all

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attachments thereto, on respondent and respondent’s counsel, the Attorney General for the State of

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California.

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2.

Within ninety (90) days of receiving service of this Order, respondent shall file 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 granted based on petitioner’s cognizable claims.

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NO. C 13-2296-RS
ORDER

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Respondent shall file with the answer a copy of all portions of the state trial record that previously

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have been transcribed and that are relevant to a determination of the issues presented by the petition.

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3.

Petitioner shall file any traverse within thirty (30) days of the date the answer is filed.

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4.

In lieu of an answer, respondent may file, within ninety (90) days of receiving

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service of this Order, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a

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motion, petitioner shall file an opposition or statement of non-opposition within thirty (30) days of

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the date the motion is filed, and respondent shall file any reply within fifteen (15) days of the date

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any opposition is filed.

For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: 6/12/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 13-2296-RS
ORDER

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