Del Real v. Grounds

Filing 5

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 12/23/2013.. Signed by Judge Alsup on 9/24/2013. (whalc3, COURT STAFF) (Filed on 9/24/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID DELREAL,

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For the Northern District of California

United States District Court

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No. C 13-03423 WHA

Petitioner,
v.

ORDER TO SHOW CAUSE

RANDY GROUNDS,

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Respondent.
/

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INTRODUCTION
Petitioner David DelReal is currently serving his sentence in Salinas Valley State Prison

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in Monterey County, California. In his petition for a writ of habeas corpus, he has stated valid

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claims under 28 U.S.C 2254. Thus, respondent is ORDERED TO ANSWER the petition.

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STATEMENT
A jury in San Benito County convicted petitioner of one count of attempted voluntary

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manslaughter and one count of carrying a concealed dirk or dagger. He was sentenced to 19

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years and two months for both counts plus enhancements for personal discharge of a firearm and

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personal infliction of great bodily injury. The California Court of Appeal affirmed the

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conviction on direct appeal, and the California Supreme Court denied his petition review.

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ANALYSIS

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1.

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

STANDARD OF REVIEW.

state-court judgment but only on grounds that he is held in violation of the Constitution, laws or

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treaties of the United States. 28 U.S.C. 2254(a). A court may “issue an order directing the

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respondent to show cause why the writ should not be granted,” unless the petition is baseless. 28

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U.S.C. 2243. Summary dismissal is appropriate only if the petition’s allegations are vague,

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conclusory, incredible or frivolous. See Hendricks v. Vazquez, 908 F.2d 490, 491 (9th Cir.

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1990).

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2.

LEGAL CLAIMS.

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As grounds for federal habeas relief, petitioner claims that the conviction was imposed in

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violation of his constitutional rights under the Sixth, Fifth, and Fourteenth Amendments to the

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United States Constitution. In support of these claims, he argues that the trial court
impermissibly allowed the prosecutor to allege sentencing enhancements after the jury had been

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For the Northern District of California

United States District Court

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dismissed, and even if properly alleged, did not provide petitioner an opportunity to waive his

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right to a jury trial as to the additional allegations. Furthermore, petitioner alleges that the

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prosecutor’s statement of the law on voluntary intoxication was inaccurate and therefore

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impermissible. These claims, when liberally constructed, are sufficient to require a response.

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CONCLUSION
The Clerk SHALL IMMEDIATELY SERVE respondent’s counsel with a copy of the petition
and memorandum of points and authorities, all attachments to it, and this order.
RESPONDENT SHALL FILE WITH THE COURT AND SERVE ON PETITIONER, WITHIN

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NINETY DAYS OF THE ISSUANCE OF THIS ORDER, AN ANSWER conforming

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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 based on the claims found cognizable herein. Respondent shall file with the

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answer and serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues presented by the

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petition. The record must be indexed. If petitioner wishes to respond to the answer, he shall file

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a TRAVERSE AND SERVING IT ON RESPONDENT WITHIN THIRTY DAYS OF THE DATE THE

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ANSWER IS FILED.

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in all respects to Rule

Respondent may file, within ninety 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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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 of

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

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

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keep the Court informed of any change of address and must comply with issued orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772
(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 24, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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