Hernandez v. Davey et al

Filing 5

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 7/7/2015. Traverse due by 8/6/2015. Signed by Judge Laurel Beeler on 5/8/2015. (lblc2, COURT STAFF) (Filed on 5/8/2015)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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For the Northern District of California

UNITED STATES DISTRICT COURT

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ROBERT VALENTINO HERNANDEZ,

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Petitioner,

ORDER TO SHOW CAUSE

v.

[Re: ECF No. 1]

DAVE DAVEY, Warden,

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No. 3:15-cv-01805 LB

Respondent.
_____________________________________/

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INTRODUCTION
Robert Valentino Hernandez, an inmate at California State Prison – Corcoran in Corcoran,

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California, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Petition,

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ECF No. 1.) His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4

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of the Rules Governing Section 2254 Cases in the United States District Courts. This order requires

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the respondent to respond to the petition.

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STATEMENT

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Mr. Hernandez was convicted in the Contra Costa County Superior Court of two counts of first

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degree murder with associated firearms and gang enhancements. He was sentenced to two

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consecutive terms of 15 years to life in state prison. Among the evidence introduced against him

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ORDER

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was the testimony of Jason Treas, who had been in jail with Mr. Hernandez on two occasions and

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who testified about what Mr. Hernandez told him while they were in jail together.

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After he was convicted, Mr. Hernandez timely filed a direct appeal to the California Count of

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Appeals, First District, which affirmed his convictions. Mr. Hernandez then timely filed a petition

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for review with the California Supreme Court. The California Supreme Court denied his petition for

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review on January 21, 2014.

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On April 21, 2015, Mr. Hernandez filed the instant petition for writ of habeas corpus in this
court.

This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

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

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For the Northern District of California

ANALYSIS

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UNITED STATES DISTRICT COURT

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423

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U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the respondent

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

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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In his federal petition, Mr. Hernandez asserts that he is entitled to a writ of habeas corpus due to

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a violation of his Sixth Amendment right to counsel under Massiah v. United States, 377 U.S. 201

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(1964). The Supreme Court has held that the right to counsel under Massiah “guarantees the

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accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’

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between him and the State.” Maine v. Moulton, 474 U.S. 159, 176 (1985). Although “the Sixth

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Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating

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statements from the accused after the right to counsel has attached,” the state may not knowingly

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exploit an opportunity to confront an accused in the absence of counsel or intentionally create a

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situation “likely to induce [him] to make incriminating statements without the assistance of

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counsel.” Id.; United States v. Henry, 447 U.S. 264, 274 (1980). To prove a Sixth Amendment

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Massiah violation based on the government’s use of an informant, a petitioner must show that the

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informant was acting as a government agent and that he or she “deliberately elicited” incriminating

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statements from the petitioner. Massiah, 377 U.S. at 206; Henry, 447 U.S. at 269-70.

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Upon review of Mr. Hernandez’s petition, the court cannot say that his claim is patently without
merit. Respondent must respond to it.

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CONCLUSION

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For the foregoing reasons,

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1. The claim that Mr. Hernandez’s Sixth Amendment right to counsel under Massiah v. United

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States, 377 U.S. 201 (1964), was violated warrants a response.
2. The clerk shall serve by mail a copy of this order, the petition and all attachments thereto

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upon Respondent and 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 Mr. Hernandez.

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3. The clerk also shall serve a copy of the “consent or declination to magistrate judge
jurisdiction” form upon respondent and respondent’s attorney, the Attorney General of the State of

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For the Northern District of California

UNITED STATES DISTRICT COURT

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California.

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4. Respondent must file and serve upon Mr. Hernandez, on or before July 7, 2015, an answer

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conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why

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a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all

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portions of the court proceedings that have been previously transcribed and that are relevant to a

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determination of the issues presented by the petition.

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5. If Mr. Hernandez wishes to respond to the answer, he must do so by filing a traverse with the
court and serving it on Respondent on or before August 6, 2015.
IT IS SO ORDERED.
Dated: May 8, 2015
_______________________________
LAUREL BEELER
United States Magistrate Judge

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