Yim v. Lizarraga
Filing
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ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 7/10/2017. Signed by Magistrate Judge Maria-Elena James on 5/11/2017. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 5/11/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ROBERT D. YIM,
Petitioner,
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JOE A. LIZARRAGA, Warden,
Respondent.
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United States District Court
Northern District of California
ORDER TO SHOW CAUSE
v.
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Case No. 16-cv-03610-MEJ (PR)
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INTRODUCTION
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Robert Yim, a prisoner at Mule Creek State Prison, filed a pro se amended petition for writ
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of habeas corpus pursuant to 28 U.S.C. § 2254. His amended petition is now before the Court for
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review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. He
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has paid the $5.00 filing fee.
BACKGROUND
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In 2014, an Alameda County jury found petitioner guilty of second degree murder and
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multiple attempted murders, and found true certain sentencing enhancements. He was sentenced
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to 87 years to life in state prison. Petitioner appealed. In 2015, the California Court of Appeal
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affirmed the judgment, and the California Supreme Court denied review. Petitioner also filed
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various habeas petitions in the state courts. On June 27, 2016, petitioner filed the instant action.
DISCUSSION
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A.
Standard of Review
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).
A district court shall “award the writ or issue an order directing the respondent to show
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cause why the writ should not be granted, unless it appears from the application that the applicant
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or person detained is not entitled thereto.” 28 U.S.C. § 2243.
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B.
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Petitioner’s Claims
As grounds for federal habeas relief, petitioner claims: (1) the prosecutor committed
misconduct by posing inflammatory questions to a witness; (2) the trial court erred in denying
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petitioner’s request to represent himself and/or appoint new counsel at sentencing for the purpose
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of raising a motion for a new trial; (3) the sentence constitutes cruel and unusual punishment;
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(4) trial counsel rendered ineffective assistance by failing to give petitioner an opportunity to
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United States District Court
Northern District of California
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respond to a plea deal offered by the prosecution; and (5) trial counsel rendered ineffective
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assistance by failing to put petitioner on the stand, despite petitioner’s desire to testify. Liberally
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construed, petitioner’s claims appear cognizable under § 2254 and merit an answer from
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respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must
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construe pro se petitions for writs of habeas corpus liberally).
CONCLUSION
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1.
The Clerk shall serve by mail a copy of this order and the amended petition and all
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attachments thereto (Docket No. 15), as well as a magistrate judge jurisdiction consent form, upon
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the 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 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 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 granted
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based on the claims found cognizable herein. Respondent shall file with the answer and serve on
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petitioner a copy of all portions of the state trial record that have been transcribed previously and
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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
Court and serving it on respondent within thirty (30) days of the date the answer is filed.
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3.
Respondent may file, within sixty (60) 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 Rules
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Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the
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Court and serve on respondent an opposition or statement of non-opposition within twenty-eight
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(28) days of the date the motion is filed, and respondent shall file with the Court and serve on
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petitioner a reply within fourteen (14) 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
respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep
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the Court informed of any change of address and must comply with the Court’s orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
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United States District Court
Northern District of California
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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
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1997) (Rule 41(b) applicable in habeas cases).
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5.
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.
IT IS SO ORDERED.
Dated: May 11, 2017
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MARIA-ELENA JAMES
United States Magistrate Judge
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