Powell v. Harris

Filing 11

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 4/10/2017.. Signed by Magistrate Judge Jacqueline S. Corley on 2/9/17. (klhS, COURT STAFF) (Filed on 2/9/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 QUINDALE POWELL, 7 Plaintiff, 8 ORDER TO SHOW CAUSE v. 9 KAMALA HARRIS, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.16-cv-05876-JSC 12 INTRODUCTION 13 Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ 14 15 of habeas corpus under 28 U.S.C. § 2254 challenging his conviction.1 Petitioner has paid the 16 filing fee. Because the petition states a cognizable basis for federal habeas, a response from 17 Respondent is warranted. 18 BACKGROUND 19 Petitioner was convicted of murder in 2008 in San Mateo County Superior Court. The trial 20 21 court sentenced him to a term of 53 years to life in state prison. In 2012, the California Court of 22 Appeal affirmed the judgment, and the California Supreme Court denied a petition for review. 23 Thereafter, Petitioner unsuccessful petitioned for a writ of habeas corpus in the Superior Court, the 24 California Court of Appeal, and the California Supreme Court. Petitioner subsequently filed the 25 instant federal petition. 26 27 1 28 Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 7.) DISCUSSION 1 2 I. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 3 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It 6 shall “award the writ or issue an order directing the respondent to show cause why the writ should 7 not be granted, unless it appears from the application that the applicant or person detained is not 8 9 10 United States District Court Northern District of California 11 entitled thereto.” Id. § 2243. II. Legal Claims Petitioner claims that: (1) the trial court erred in admitting testimony that petitioner shot 12 the victim; (2) the trial court erred by instructing the jury about mutual combat and pretextual self- 13 defense; (3) the trial court erred by failing to define the term “mutual combat” used in the 14 instructions; (4) the trial court erred by giving the prosecutor’s special instruction about 15 16 17 manslaughter to the jury; (5) trial counsel provided Petitioner ineffective assistance; (6) the prosecutor committed misconduct; (7) appellate counsel provided Petitioner ineffective assistance; 18 and (8) the trial judge committed misconduct. When liberally construed, these claims state 19 cognizable grounds for federal habeas relief. 20 21 CONCLUSION For the foregoing reasons and for good cause shown, 22 1. The Clerk shall serve a Magistrate Judge jurisdiction consent form, a copy of this 23 24 Order, and the petition, and all attachments thereto, on Respondent and Respondent’s attorney, the 25 Attorney General of the State of California. The Clerk also shall serve a copy of this Order on 26 Petitioner. 27 28 2. Respondent shall complete and file the Magistrate Judge jurisdiction consent form in accordance with the deadline provided on the form. 2 1 3. Respondent shall also file with the Court and serve on Petitioner, within ninety-one (91) 2 days of the date this Order is issued, an answer conforming in all respects to Rule 5 of the Rules 3 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 4 Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state 5 trial record that have been transcribed previously and that are relevant to a determination of the 6 issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by 7 filing a traverse (a reply) with the Court and serving it on Respondent within twenty-eight (28) 8 9 10 days of the date the answer is filed. 4. Respondent may, within ninety-one (91) days of the date this Order is issued, file a United States District Court Northern District of California 11 motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory 12 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such 13 14 a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition within twenty-eight (28) days of the date the motion is filed, and Respondent 15 16 17 18 shall file with the Court and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court 19 informed of any change of address by filing a separate paper captioned “Notice of Change of 20 Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so may 21 result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 22 Procedure 41(b). 23 24 IT IS SO ORDERED. Dated: February 9, 2017 25 JACQUELINE SCOTT CORLEY United States Magistrate Judge 26 27 28 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 QUINDALE POWELL, Case No. 16-cv-05876-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 KAMALA HARRIS, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 9, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Quindale Powell ID: G-53316 California State Prison, Solano (4000) P.O. Box 4000 Vacaville, CA 95696-4000 19 20 21 Dated: February 9, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ Karen Hom, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 27 28 4

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