Llamas v. Seibel

Filing 12

ORDER OF SERVICE - The clerk shall serve by certified mail a copy of this order and the 1 Petition and all attachments thereto upon respondent and respondent's counsel. Signed by Judge William H. Orrick on 01/09/2017. (jmdS, COURT STAFF) (Filed on 1/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEONARD L. LLAMAS,

Case No. 16-cv-05812-WHO

Plaintiff,
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v.

ORDER OF SERVICE

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KIMBERLY A SEIBEL,

Re: Dkt. No. 1

Defendant.

United States District Court
Northern District of California

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Petitioner Leonard L. Llamas, a state prisoner incarcerated at Chuckawalla State Prison in

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Blythe, California has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. It

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is sufficiently pleaded to require service on the defendants.

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I. BACKGROUND

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Llamas was convicted by a jury of felony battery against a person with whom he had a

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spousal or dating relationship, under California Penal Code §273.5(a), in Santa Clara County

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Superior Court. After trial, the court conducted a 10-day hearing to assess whether two alleged

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“strikes” would be used as prior enhancements for the purposes of sentencing. The court found

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Llamas had a prior “strike” based on a conviction for violating Penal Code §220 in Santa Clara

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County, as well as a second “strike” based on a Colorado robbery, however Llamas successfully

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moved to dismiss the Colorado “strike” as a prior enhancement. Llamas was sentenced to eight

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years in state prison. Llamas received the upper term of four years on the felony battery charge,

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doubled by virtue of the remaining strike from the §220 violation.

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Llamas appealed his conviction to the California Court of Appeal, raising most of the

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issues raised in this federal habeas petition. The court denied his appeal and on June 23, 2015

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issued a twenty-eight page opinion affirming his conviction. That same day the court also denied

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Llamas’ petition for a writ of habeas corpus. Llamas appealed the Court of Appeal’s decision to

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the Supreme Court of California, which on September 30, 2015 denied review. That same day the

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Supreme Court of California also denied a petition for a writ of habeas corpus which Llamas had

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filed with the court.

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II. DISCUSSION

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A. Legal Standard

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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 or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It
must “award the writ or issue an order directing the respondent to show cause why the writ should

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United States District Court
Northern District of California

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not be granted, unless it appears from the application that the applicant or person detained is not

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entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations

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in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasques, 908 F.2d 490, 491 (9th Cir. 1990).

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B. Llamas’s Legal Claims

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Llamas seeks federal habeas corpus relief by raising the following claims: (1) he was

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denied his right to self-representation when the trial court denied his motion for self-representation

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after the jury was empaneled and before opening statements; (2) he received ineffective assistance

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of counsel because his counsel failed to present photographic evidence of Llamas’ clothes after his

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arrest showing a lack of blood; (3) he received ineffective assistance of counsel because his

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counsel failed to object to hearsay testimony that had already been deemed barred by an in limine

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ruling; (4) he received ineffective assistance of counsel because his counsel failed to object to

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serious prosecutorial misconduct during closing argument; (5) his due process rights were violated

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because the trial court coerced a deadlocked jury into returning a guilty verdict; (6) the cumulative

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prejudice due to violations of Llamas’ due process rights and right to effective assistance of

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counsel deprived Llamas of a fair trial. Liberally construed, these claims appear colorable under

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28 U.S.C. § 2254 and merit an answer from respondent.

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III. CONCLUSION
For the foregoing reasons and for good cause shown:
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attachments thereto upon respondent and respondent’s counsel.

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The clerk shall serve by certified mail a copy of this order and the petition and all

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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 showing why a writ of habeas corpus should not be

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issued. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the administrative record that are relevant to a determination of the
issues presented by the petition.

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United States District Court
Northern District of California

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If the petitioner wishes to respond to the answer, he must do so by filing a traverse

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with the court and serving it on respondent within 30 days of his receipt of the

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answer.

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IT IS SO ORDERED.

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Dated: January 9, 2017
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WILLIAM H. ORRICK
United States District Judge

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