Davidson v. Arnold
Filing
10
ORDER REOPENING CASE; ORDER TO SHOW CAUSE. Signed by Chief Magistrate Judge Joseph C. Spero on 8/22/16. (klhS, COURT STAFF) (Filed on 8/22/2016)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
RICHARD C. DAVIDSON,
Case No. 16-cv-03298-JCS (PR)
Plaintiff,
9
v.
ORDER REOPENING ACTION;
ORDER TO SHOW CAUSE
10
11
ERIC ARNOLD,
United States District Court
Northern District of California
Defendant.
12
Dkt. No. 7
13
14
15
INTRODUCTION
This federal habeas action was dismissed because petitioner failed to pay the filing
16
fee or file a complete application to proceed in forma pauperis. Petitioner since has paid
17
the filing fee. (Docket No. 8.) The action is REOPENED. The Clerk is directed to amend
18
the docket accordingly. The judgment (Docket No. 5) and the order of dismissal (Docket
19
No. 4) are VACATED.
20
Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state
21
convictions. The petition for such relief is here for review under 28 U.S.C. § 2243 and
22
Rule 4 of the Rules Governing Section 2254 Cases.
23
Respondent shall file a response to the petition on or before October 17, 2016.
24
BACKGROUND
25
According to the petition, in 2011, a San Benito County Superior Court jury
26
convicted petitioner of child abuse, aggravated assault, and vandalism. On appeal, his
27
convictions were affirmed in part and reversed in part. On remand, he was sentenced to
28
25 years to life plus 13 years in state prison.
DISCUSSION
1
2
This Court may entertain a petition for writ of habeas corpus “in behalf of a person
3
in custody pursuant to the judgment of a State court only on the ground that he is in
4
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
5
§ 2254(a). A district court considering an application for a writ of habeas corpus shall
6
“award the writ or issue an order directing the respondent to show cause why the writ
7
should not be granted, unless it appears from the application that the applicant or person
8
detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate
9
only where the allegations in the petition are vague or conclusory, palpably incredible, or
10
patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
United States District Court
Northern District of California
11
As grounds for federal habeas relief, petitioner claims that (1) the prosecutor
12
committed misconduct; (2) the trial court failed to instruct the jury on lesser included
13
offenses; (3) there was insufficient evidence to support his conviction for child abuse;
14
(4) the trial court failed to give proper jury instructions on reasonable doubt; (5) defense
15
counsel rendered ineffective assistance; and (6) there was cumulative error. When
16
liberally construed, these claims appear to be cognizable in a federal habeas corpus action.
17
CONCLUSION
18
1. The Clerk shall serve a copy of this order, the petition and all attachments
19
thereto, and a Magistrate Judge jurisdiction consent or declination to consent form on
20
respondent and respondent’s counsel, the Attorney General for the State of California. The
21
Clerk shall also serve a copy of this order on petitioner.
22
2. Respondent shall file with the Court and serve on petitioner, within sixty (60)
23
days of the date this order is filed, an answer conforming in all respects to Rule 5 of the
24
Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should
25
not be granted based on petitioner’s cognizable claims. Respondent shall file with the
26
answer and serve on petitioner a copy of all portions of the state trial record that previously
27
have been transcribed and that are relevant to a determination of the issues presented by
28
the petition.
2
1
3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse
2
with the Court and serving it on respondent’s counsel within thirty (30) days of the date the
3
answer is filed.
4
4. In lieu of an answer, respondent may file, within sixty (60) days of the date this
5
order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory
6
Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent
7
files such a motion, petitioner shall file with the Court and serve on respondent an
8
opposition or statement of non-opposition within thirty (30) days of the date the motion is
9
filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen
10
United States District Court
Northern District of California
11
12
13
(15) days of the date any opposition is filed.
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
14
Court and respondent informed of any change of address and must comply with the
15
Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this
16
action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
17
18
19
20
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.
8. Petitioner’s motion to proceed in forma pauperis (Docket No. 7) is DENIED as
moot, the filing fee having been paid (Docket No. 8).
21
9. The Clerk shall terminate Docket No. 7.
22
IT IS SO ORDERED.
23
Dated: August 22, 2016
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge
24
25
26
27
28
3
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
RICHARD C. DAVIDSON,
Case No. 16-cv-03298-JCS
Plaintiff,
8
v.
CERTIFICATE OF SERVICE
9
10
ERIC ARNOLD,
Defendant.
United States District Court
Northern District of California
11
12
13
14
15
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 August 22, 2016, 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.
16
17
18
Richard C. Davidson ID: AK4986
California State Prison-Solano
P.O. Box 4000
Vacaville, CA 95696
B-10-118
19
20
21
Dated: August 22, 2016
22
23
Susan Y. Soong
Clerk, United States District Court
24
25
26
By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?