Ricardo Torres v. Scott Frauenheim
Filing
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ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 7/5/2017. Signed by Chief Magistrate Judge Joseph C. Spero on April 5, 2017. (jcslc2S, COURT STAFF) (Filed on 4/5/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RICARDO TORRES,
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Case No. 16-cv-06054-JCS
Plaintiff,
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v.
ORDER TO SHOW CAUSE
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SCOTT FRAUENHEIM,
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Defendant.
United States District Court
Northern District of California
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I.
INTRODUCTION
Petitioner Ricardo Torres seeks federal habeas relief under 28 U.S.C. § 2254 from his state
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convictions. The petition for such relief is here for review under 28 U.S.C. § 2243 and Rule 4 of
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the Rules Governing Section 2254 Cases. Respondent Scott Frauenheim shall file a response to
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the petition on or before July 5, 2017.1
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II.
BACKGROUND
Torres states in his petition that following a jury trial he was convicted of assault by means
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of force likely to produce great bodily injury, with special allegations that he personally inflicted
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great bodily injury and that the assault was a hate crime, and sentenced to nineteen years in state
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prison in 2013. On direct appeal in 2015, a California appellate court modified the judgment as to
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certain probation conditions but otherwise affirmed the conviction and sentence. See Pet. (dkt. 1)
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Ex. 1. Torres petitioned the Supreme Court of California for review, but that court denied his
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petition on July 22, 2015. See id. Ex. 2. Torres filed this habeas action on October 19, 2016.
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III.
ANALYSIS
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
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Torres, the only party yet to appear in this action, has consented to the jurisdiction of the
undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).
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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). A
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district court considering an application for a writ of habeas corpus shall “award the writ or issue
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an order directing the respondent to show cause why the writ should not be granted, unless it
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appears from the application that the applicant or person detained is not entitled thereto.” 28
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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are
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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez,
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908 F.2d 490, 491 (9th Cir. 1990).
As grounds for federal habeas relief, Torres asserts that improper jury instructions violated
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his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
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United States District Court
Northern District of California
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When liberally construed, these claims are cognizable in a federal habeas corpus action.
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IV.
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CONCLUSION
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a
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magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s
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counsel, the Attorney General for the State of California.
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2. No later than July 5, 2017, Respondent shall file an answer conforming in all respects to
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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus
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should not be granted based on Torres’s claims. Respondent shall file with the answer all portions
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of the state trial record that previously have been transcribed and that are relevant to a
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determination of the issues presented by the petition.
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3. If Torres wishes to respond to the answer, he shall do so by filing a traverse with the
Court no later than August 4, 2017.
4. In lieu of an answer, Respondent may file, no later than July 5, 2017, a motion to
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dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the
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Rules Governing Section 2254 Cases. If Respondent files such a motion, Torres shall file an
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opposition or statement of non-opposition within twenty-eight days of the date the motion is filed,
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and Respondent shall file a reply within fourteen days of the date any opposition is filed.
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5. Upon a showing of good cause, requests for a reasonable extension of time will be
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granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: April 5, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge
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United States District Court
Northern District of California
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