Yim v. Lizarraga

Filing 16

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