Kevin v. Virga

Filing 13

ORDER by Judge James Donato granting 11 Motion for Extension of Time to File; granting 12 Motion to Amend/Correct ; (lrcS, COURT STAFF) (Filed on 8/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN LIPSCOMB,

Case No. 13-cv-05744-JD

Plaintiff,
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v.

ORDER FOR RESPONDENT TO SHOW
CAUSE

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TIM VIRGA,

Re: Dkt. Nos. 11, 12
Defendant.

United States District Court
Northern District of California

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. He has paid the filing fee. Petitioner was convicted in San Francisco

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County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). The original

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petition was dismissed with leave to amend and petitioner has filed an amended petition.
BACKGROUND

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A jury convicted petitioner of evading a police officer, possession of a firearm by a felon,

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discharging a firearm from a motor vehicle and assault with a semiautomatic firearm stemming

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from a shooting and high-speed police chase through San Francisco. It was also found that

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petitioner had two prior felony convictions. He was sentenced to 67 years to life in state prison.
DISCUSSION

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I.

STANDARD OF REVIEW

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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); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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II.

LEGAL CLAIMS
As grounds for federal habeas relief, petitioner asserts that: (1) trial counsel was ineffective

for failing to challenge a witness’ identification as unduly suggestive; (2) the trial court imposed
an excessive restitution fine of $27,800 that should be reduced to $10,000; (3) the trial court

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United States District Court
Northern District of California

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violated his due process rights by failing to hold a competency hearing; and (4) trial counsel was

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ineffective for failing to request a competency hearing.

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It appears petitioner’s first claim was exhausted and is sufficient to require a response. On

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direct appeal the California Court of Appeal granted petitioner relief with respect to his second

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claim regarding the restitution fee and ordered the amount lowered to $10,000. People v.

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Lipscomb, 2012 WL 2519057 (Cal.App. 1 Dist., 2012). As petitioner has already received the

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relief that he seeks, this claim is dismissed.

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The third and fourth claims had not been exhausted when petitioner filed the original

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petition and he was ordered to either file a stay or proceed with the exhausted claim. Petitioner

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indicates that the California Supreme Court has recently denied the claims and he has included a

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denial order from that court. Therefore, the petition will proceed on claims one, three and four.
CONCLUSION

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1.

The motion for an extension (Docket No. 11) is GRANTED and the amended

petition is deemed timely filed. The motion to amend (Docket No. 12) is GRANTED.
2.

The clerk shall serve by regular mail a copy of this order and the amended petition

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

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State of California. The clerk also shall serve a copy of this order on petitioner.

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3.

Respondent shall file with the Court and serve on petitioner, within fifty-six (56)

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days of 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 granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer.
4.

Respondent may file 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 Governing Section

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United States District Court
Northern District of California

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2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order

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is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an

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opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion,

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and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days

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of receipt of any opposition.

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5.

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 keep

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the Court informed of any change of address and must comply with the Court's orders in a timely

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fashion. 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). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: August 5, 2014
______________________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN LIPSCOMB,

Case No. 13-cv-05744-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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TIM VIRGA,
Defendant.

United States District Court
Northern District of California

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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 8/6/2014, 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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Kevin Lipscomb
California State Prison-Sacramento
P.O. Box 290066
Represa, CA 95671

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Dated: 8/6/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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