Zuniga v. Ducart

Filing 2

ORDER TO SHOW CAUSE. Signed by Magistrate Judge Jacqueline Scott Corley on 9/30/2014. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 9/30/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS JOSEPH ZUNIGA,

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Petitioner,

Case No. 14-cv-03489-JSC

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v.

ORDER TO SHOW CAUSE

United States District Court
Northern District of California

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C. E. DUCART,

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Respondent.
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Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for

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a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence in

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state court. 1 He has paid the filing fee. Because the petition states cognizable claims for

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relief, a response from Respondent is warranted.
BACKGROUND

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In 2010, Petitioner was convicted in Santa Cruz County Superior Court of assault

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after entering a guilty plea. Based upon this conviction and a number of sentencing
enhancements, including those for prior convictions, the trial court sentenced Petitioner to
a term of 20 years in state prison. Petitioner did not appeal the judgment directly.
Beginning in 2013, however, he filed habeas petitions in the superior court, the California
Court of Appeal, and the California Supreme Court, all of which were denied. The instant

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federal petition followed.
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Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). (Dkt. No. 1 at 7.)

DISCUSSION

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I.

Standard of Review

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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 in

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

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§ 2254(a). It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant
or person detained is not entitled thereto.” Id. § 2243.
II.

Legal Claims
As grounds for federal habeas relief, Petitioner claims that: (1) he received

ineffective assistance from trial counsel who failed to file a discovery motion, failed to
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United States District Court
Northern District of California

investigate favorable evidence, failed to collect physical evidence and medical records,
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hired an ineffective investigator, and failed to investigate why a witness was placed into a
witness protection program; and (2) the trial court enhanced his sentence based upon an
“illegal” prior “strike” conviction. When liberally construed, 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 a Magistrate Judge jurisdiction consent form, a copy of

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this Order, and the petition, and all attachments thereto, on Respondent and Respondent’s

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attorney, the Attorney General of the State of California. The Clerk also shall serve a copy

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of this Order on Petitioner.

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2. Respondent shall complete and file the Magistrate Judge jurisdiction consent

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form within twenty-eight (28) days of the date this Order is issued. If Respondent

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consents to a Magistrate Judge’s jurisdiction, then Respondent shall file with the Court and

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serve on Petitioner, within ninety-one(91) days of the date this Order is issued, an answer

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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. 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

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the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a

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traverse (a reply) with the Court and serving it on Respondent within twenty-eight (28)

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days of the date the answer is filed.

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3. Respondent may, within ninety-one (91) days of the date this Order is issued,
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 2254 Cases. If
Respondent files such a motion, Petitioner shall file with the Court and serve on
Respondent an opposition or statement of non-opposition within twenty-eight (28) days of
the date the motion is filed, and Respondent shall file with the Court and serve on
Petitioner a reply within fourteen (14) days of the date any opposition is filed.

United States District Court
Northern District of California

4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the
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Court informed of any change of address by filing a separate paper captioned “Notice of
Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure
to do so may result in the dismissal of this action for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.

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Dated: September 30, 2014
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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