Cuevas v. Montgomery

Filing 7

ORDER TO SHOW CAUSE by Judge William Alsup, denying 4 Motion to Appoint Counsel ; granting 6 Motion for Leave to Proceed in forma pauperis; granting 2 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 2/6/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARCOS ANTHONY CUEVAS,

ORDER TO SHOW CAUSE;
DENYING APPOINTMENT OF
COUNSEL; GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

v.

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No. C 13-5790 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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MONTGOMERY,
Respondent.

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(Dkt. 2, 4, 6)
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INTRODUCTION

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

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pursuant to 28 U.S.C. 2254. For the reasons discussed below, respondent is ordered to show

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cause why the petition should not be granted.
STATEMENT

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Petitioner was convicted in 2011 of murder. He was sentenced to a term of life without

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the possibility of parole. The judgment was affirmed by the California Court of Appeal, and the

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California Supreme Court denied the petition for review.
ANALYSIS

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A.

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

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v. 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

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

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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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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For the Northern District of California

United States District Court

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B.

LEGAL CLAIMS
Petitioner claims: (1) his right to due process was violated because the trial court

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admitted cumulative and prejudicial evidence of his gangs; and (2) the trial court’s denial of

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petitioner’s motion to discharge the jury panel violated his right to due process and to an

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impartial jury. When liberally construed, these claims are sufficient to warrant an answer from

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respondent.

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CONCLUSION

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1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within ninety-one days

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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

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

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

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previously and that are relevant to a determination of the 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

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court and serving it on respondent within twenty-eight days of the date the answer is filed.

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3. Respondent may file, within ninety-one days, a motion to dismiss on procedural
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grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file

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with the court and serve on respondent an opposition or statement of non-opposition within

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twenty-eight days of the date the motion is filed, and respondent shall file with the court and

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serve on petitioner a reply within fourteen days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the court must be served on

keep the court informed of any change of address and must comply with the court's 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

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For the Northern District of California

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

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United States District Court

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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5. The application to proceed in forma pauperis (dkt. 2, 6) is GRANTED. The motion for

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appointment of counsel is DENIED without prejudice because there is no need for an evidentiary

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hearing and petitioner has thus far been able to present his claims effectively.

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IT IS SO ORDERED.

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Dated: February

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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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