Elizalde v. Muniz

Filing 4

ORDER TO SHOW CAUSE. Signed by Magistrate Judge Jacqueline Scott Corley on 9/2/2016. (ahm, COURT STAFF) (Filed on 9/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GAMALIEL ELIZALDE,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-04607-JSC
ORDER TO SHOW CAUSE

v.
WILLIAM MUNIZ,
Respondent.

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Petitioner, a state inmate, has a filed a petition for writ of habeas corpus. The petition

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arises out of his December 2010 conviction in Contra Costa Superior Court for three gang-related

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murders and subsequent sentence to a total of 103 years to life.

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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 of the United States.” 28 U.S.C. § 2254(a). It 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 thereto.”

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28 U.S.C. § 2243. Summary dismissal of a petition is appropriate only where the petition’s

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allegations are vague, conclusory, palpably incredible, or patently frivolous or false. Hendricks v.

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

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Petitioner raises several claims. First, that his conviction violated his Fourteenth

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Amendment due process rights because the evidence against him was uncorroborated accomplice

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testimony and thus insufficient. Second, the evidence was also insufficient in that there was no

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evidence to support a finding that the murders were committed in furtherance of a conspiracy.

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Third, Petitioner’s due process rights were violated by the admission of recorded jail calls.

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Fourth, Petitioner was denied his Sixth Amendment right to effective assistance of counsel when

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his trial counsel failed to seek redaction of certain calls. Fifth, Petitioner’s due process rights were

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violated by the admission of a 2007 drug arrest as substantive evidence of his guilt. Sixth, the trial

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judge erroneously instructed the jury regarding accomplice liability and use of petitioner’s prior

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arrest. Seventh, Petitioner was again denied his right to effective assistance of counsel when trial

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counsel failed to object to the admission of uncharged crimes. Finally, the cumulative effect of the

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above errors denied Petitioner the right to a fair trial in violation of the Fourteenth Amendment.

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Petitioner also alleges that although the Petition on its face appears untimely, the delayed filing is

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due to his previous appellate counsel’s “extreme neglect” and thus excusable.

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United States District Court
Northern District of California

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Petitioner’s claims, when considered in connection with the Petition’s factual recitation,
are sufficient to avoid summary dismissal and require an answer.

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Accordingly, the Court orders as follows:

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1.

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Petitioner shall serve a copy of this Order and the Petition and all attachments

thereto on Respondent.
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Respondent shall file with the court and serve on Petitioner, within 60 days of the

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date of this Order, an answer conforming in all respects to Rule 5 of the Rules Governing Section

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2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall

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file with the answer and serve on Petitioner a copy of all portions of the administrative record that

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are relevant to a determination of the issues presented by the Petition. Petitioner may file a

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traverse within 30 days of the filing of Respondent’s answer.

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IT IS SO ORDERED.
Dated: September 2, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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