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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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QUINDALE POWELL,

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Plaintiff,

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ORDER TO SHOW CAUSE

v.

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KAMALA HARRIS, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No.16-cv-05876-JSC

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INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ

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of habeas corpus under 28 U.S.C. § 2254 challenging his conviction.1 Petitioner has paid the

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filing fee. Because the petition states a cognizable basis for federal habeas, a response from

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Respondent is warranted.

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BACKGROUND

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Petitioner was convicted of murder in 2008 in San Mateo County Superior Court. The trial
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court sentenced him to a term of 53 years to life in state prison. In 2012, the California Court of

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Appeal affirmed the judgment, and the California Supreme Court denied a petition for review.

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Thereafter, Petitioner unsuccessful petitioned for a writ of habeas corpus in the Superior Court, the

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California Court of Appeal, and the California Supreme Court. Petitioner subsequently filed the

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instant federal petition.

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Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (ECF No. 7.)

DISCUSSION

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I.

Standard of Review
This Court may entertain a petition for a 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

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shall “award the writ or issue an order directing the respondent to show cause why the writ should

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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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United States District Court
Northern District of California

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entitled thereto.” Id. § 2243.
II.

Legal Claims
Petitioner claims that: (1) the trial court erred in admitting testimony that petitioner shot

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the victim; (2) the trial court erred by instructing the jury about mutual combat and pretextual self-

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defense; (3) the trial court erred by failing to define the term “mutual combat” used in the

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instructions; (4) the trial court erred by giving the prosecutor’s special instruction about

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manslaughter to the jury; (5) trial counsel provided Petitioner ineffective assistance; (6) the
prosecutor committed misconduct; (7) appellate counsel provided Petitioner ineffective assistance;

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and (8) the trial judge committed misconduct. When liberally construed, these claims state

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cognizable grounds for federal habeas relief.

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CONCLUSION
For the foregoing reasons and for good cause shown,

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1. The Clerk shall serve a Magistrate Judge jurisdiction consent form, a copy of this
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Order, and the petition, and all attachments thereto, on Respondent and Respondent’s attorney, the

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Attorney General of the State of California. The Clerk also shall serve a copy of this Order on

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Petitioner.

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2. Respondent shall complete and file the Magistrate Judge jurisdiction consent form in
accordance with the deadline provided on the form.
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3. Respondent shall also file with the Court and serve on Petitioner, within ninety-one (91)

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days of the date this Order is issued, 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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Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by

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filing a traverse (a reply) with the Court and serving it on Respondent within twenty-eight (28)
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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

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motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such

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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

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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

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informed of any change of address by filing a separate paper captioned “Notice of Change of

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Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so may

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result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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IT IS SO ORDERED.
Dated: February 9, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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QUINDALE POWELL,

Case No. 16-cv-05876-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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KAMALA HARRIS, et al.,
Defendants.

United States District Court
Northern District of California

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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.

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Quindale Powell ID: G-53316
California State Prison, Solano (4000)
P.O. Box 4000
Vacaville, CA 95696-4000

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Dated: February 9, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY

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