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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT D. YIM, Petitioner, 8 JOE A. LIZARRAGA, Warden, Respondent. 11 United States District Court Northern District of California ORDER TO SHOW CAUSE v. 9 10 Case No. 16-cv-03610-MEJ (PR) 12 INTRODUCTION 13 Robert Yim, a prisoner at Mule Creek State Prison, filed a pro se amended petition for writ 14 15 of habeas corpus pursuant to 28 U.S.C. § 2254. His amended petition is now before the Court for 16 review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. He 17 has paid the $5.00 filing fee. BACKGROUND 18 In 2014, an Alameda County jury found petitioner guilty of second degree murder and 19 20 multiple attempted murders, and found true certain sentencing enhancements. He was sentenced 21 to 87 years to life in state prison. Petitioner appealed. In 2015, the California Court of Appeal 22 affirmed the judgment, and the California Supreme Court denied review. Petitioner also filed 23 various habeas petitions in the state courts. On June 27, 2016, petitioner filed the instant action. DISCUSSION 24 25 26 A. Standard of Review This court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a state court only on the ground that he is in custody in 28 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose 1 v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the respondent to show 2 3 cause why the writ should not be granted, unless it appears from the application that the applicant 4 or person detained is not entitled thereto.” 28 U.S.C. § 2243. 5 B. 6 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 8 petitioner’s request to represent himself and/or appoint new counsel at sentencing for the purpose 9 of raising a motion for a new trial; (3) the sentence constitutes cruel and unusual punishment; 10 (4) trial counsel rendered ineffective assistance by failing to give petitioner an opportunity to 11 United States District Court Northern District of California 7 respond to a plea deal offered by the prosecution; and (5) trial counsel rendered ineffective 12 assistance by failing to put petitioner on the stand, despite petitioner’s desire to testify. Liberally 13 construed, petitioner’s claims appear cognizable under § 2254 and merit an answer from 14 respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must 15 construe pro se petitions for writs of habeas corpus liberally). CONCLUSION 16 17 1. The Clerk shall serve by mail a copy of this order and the amended petition and all 18 attachments thereto (Docket No. 15), as well as a magistrate judge jurisdiction consent form, upon 19 the respondent and the respondent’s attorney, the Attorney General of the State of California. The 20 Clerk shall also serve a copy of this order on petitioner. 21 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 22 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 23 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 24 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 25 petitioner a copy of all portions of the state trial record that have been transcribed previously and 26 that are relevant to a determination of the issues presented by the petition. 27 28 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. 1 3. Respondent may file, within sixty (60) days, a motion to dismiss on procedural 2 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 3 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 4 Court and serve on respondent an opposition or statement of non-opposition within twenty-eight 5 (28) days of the date the motion is filed, and respondent shall file with the Court and serve on 6 petitioner a reply within fourteen (14) days of the date any opposition is filed. 7 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 9 the Court informed of any change of address and must comply with the Court’s orders in a timely 10 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 11 United States District Court Northern District of California 8 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 12 1997) (Rule 41(b) applicable in habeas cases). 13 14 15 16 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 17 18 19 20 21 22 23 24 25 26 27 28 MARIA-ELENA JAMES United States Magistrate Judge

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