Olive v. Pfeiffer

Filing 5

ORDER TO SHOW CAUSE: Respondent's answer due by 10/17/2016; petitioner's response, if any, due 30 days of the date the answer is filed; granting 2 MOTION for Leave to Proceed in forma pauperis filed by Damien Dwayne Olive. Signed by Judge Richard Seeborg on 8/4/2016. (afmS, COURT STAFF) (Filed on 8/5/2016)

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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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DAMIEN DWAYNE OLIVE,
Petitioner,

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No. C 16-02773 RS (PR)
ORDER TO SHOW CAUSE

v.
CHRISTIAN PFEIFFER, Warden,
Respondent.
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INTRODUCTION
Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state

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convictions. The petition for such relief is now before the Court for review pursuant to

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28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Respondent shall

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file a response to the petition on or before October 17, 2016, unless an extension is granted.

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BACKGROUND

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According to the petition, in 2013, a San Francisco County Superior Court jury

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convicted petitioner of first degree burglary. He was sentenced to nine years in state prison.

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DISCUSSION
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).

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No. C 16-02773 RS (PR)
ORDER TO SHOW CAUSE

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner alleges (1) there was insufficient

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evidence to support his conviction for burglary; and (2) evidence used at trial had been seized

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in violation of the Fourth Amendment. When liberally construed, Claim 1 is cognizable on

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federal habeas review.
Claim 2 is not, however, and is DISMISSED. Fourth Amendment claims are barred

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from federal habeas review unless the state did not provide an opportunity for full and fair

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litigation of those claims. Stone v. Powell, 428 U.S. 465, 481–82, 494 (1976). The existence

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of a state procedure allowing an opportunity for a full and fair litigation of Fourth

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Amendment claims, rather than a defendant’s actual use of those procedures, bars federal

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habeas consideration of those claims. See Gordon v. Duran, 895 F.2d 610, 613–14 (9th Cir.

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1990) (whether or not defendant litigated Fourth Amendment claim in state court is irrelevant

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if he had opportunity to do so under California law). California’s state procedure provides an

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opportunity for full litigation of Fourth Amendment claims. See id.; Cal. Pen. Code

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§ 1538.5.

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CONCLUSION
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto,

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on respondent and respondent’s counsel, the Attorney General for the State of California.

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The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days

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of the date this order is filed, 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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2

No. C 16-02773 RS (PR)
ORDER TO SHOW CAUSE

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granted based on petitioner’s cognizable claims. 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 previously have been

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transcribed and that are relevant to a determination of the issues presented by the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within sixty (60) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

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such a motion, petitioner shall file with the Court and serve on respondent an opposition or

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statement of non-opposition within thirty (30) 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 fifteen (15) days of

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the date any opposition is filed.

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.

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8. Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is GRANTED.

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9. The Clerk shall terminate Docket No. 2.

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IT IS SO ORDERED.

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DATED: August___, 2016
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RICHARD SEEBORG
United States District Judge

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No. C 16-02773 RS (PR)
ORDER TO SHOW CAUSE