Ward v. Swarthout

Filing 6

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jeffrey S. White on 11/15/13. (jjoS, COURT STAFF) (Filed on 11/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TREVILLION WARD,

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Petitioner,

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vs.
GARY SWARTHOUT,
Respondent.

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No. C 13-4235 JSW (PR)
ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS

(Dkt. 5)

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INTRODUCTION
Petitioner, a prisoner of the State of California proceeding pro se, has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of
his state court conviction. He has applied for leave to proceed in forma pauperis.
BACKGROUND
In 2010, Petitioner was convicted in Alameda Clara County Superior Court of
attempted murder, assault, corporal injury to a spouse, and possession of a gun by a felon.
He was sentenced to a term of 140 years to life in state prison. The California Court of
Appeal affirmed the judgment on appeal, and the California Supreme Court denied a
petition for review. Habeas petitions filed by Petitioner in the Alameda County Superior
Court, the California Court of Appeal, and the California Supreme Court were denied.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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II.

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Legal Claims
As grounds for federal habeas relief, Petitioner claims that: (1) the trial court

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denied his requests for jury instructions on lesser-included offenses, in violation of due

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process; (2) admission of testimony regarding brandishing a weapon violated his right to

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due process; (3) jurors committed misconduct by consuming alcohol during deliberations;

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(4) cumulative prejudice from various errors violated his right to due process; (5) the use

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of prior convictions to enhance his sentence violated his rights to due process and to be

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free from double jeopardy and cruel and unusual punishment; (6) the use of an

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“erroneously recorded” prior conviction at trial for impeachment and at sentencing for

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enhancement violated his right to due process; (7) he received ineffective assistance of

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trial counsel in six different respects; (8) he received ineffective assistance of appellate

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counsel; and (9) jury selection violated his equal protection rights. Liberally construed,

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these claims are sufficient to warrant a response from Respondent.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. The Clerk shall serve by certified mail a copy of this order and the petition, and

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

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2. Respondent shall file with the Court and serve on Petitioner, within 91 days of

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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on Petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition. If Petitioner wishes to respond

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to the answer, he shall do so by filing a traverse with the Court and serving it on

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Respondent within twenty-eight (28) days of the date the answer is filed.

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3. Respondent may, within ninety-one (91) days, file a motion to dismiss on
procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to

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Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion,

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Petitioner shall file with the Court and serve on Respondent an opposition or statement of

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non-opposition within twenty-eight (28) days of the date the motion is filed, and

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Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14)

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days of the date any opposition is filed.

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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: November 15, 2013
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TREVILLION WARD,

Case Number: CV13-04235 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.
GARY SWARTHOUT et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on November 18, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Trevillion Ward
CSP-Solano
P.O. Box 4000
Vacaville, CA 95696-4000
Dated: November 18, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk