McFarlane v. Freitas

Filing 19

ORDER TO SHOW CAUSE. Signed by Judge James Donato on 3/27/17. (lrcS, COURT STAFF) (Filed on 3/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN BRUCE MCFARLANE,
Petitioner,

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ORDER FOR RESPONDENT TO
SHOW CAUSE

v.
STEPHEN FREITAS,
Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-06401-JD

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Alan Bruce McFarlane, a probationer, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He has paid the filing fee and already served respondent.
BACKGROUND

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A jury found petitioner guilty of unlawfully possessing an assault weapon and he was

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sentenced to 36 months of probation. Petition at 1; People v. Macfarlane, No. A141326, 2016 WL

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3634286, at *1 (Cal. Ct. App. June 29, 2016). The California Court of Appeal affirmed the

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conviction. Macfarlane, 2016 WL 3634286, at *2. The California Supreme Court denied review.

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Petition at 2.
DISCUSSION

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STANDARD OF REVIEW

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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); Rose v.
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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of
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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS

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Petitioner’s sole ground for federal habeas relief is that his rights to due process, a fair trial
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and to present a defense were violated by the trial court’s ruling that quashed and excluded the
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testimony of a deputy who was called as petitioner’s witness. Liberally construed, this claim is
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United States District Court
Northern District of California

sufficient to require a response.
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CONCLUSION
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1.

Because all previously dates have been vacated, respondent shall file with the Court

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and serve on petitioner, within fifty-six (56) days of the issuance of this order, an answer
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conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause
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why a writ of habeas corpus should not be granted. Respondent shall file with the answer and
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serve on petitioner a copy of all portions of the state trial record that have been transcribed
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previously and that are relevant to a determination of the issues presented by the petition.
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
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Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer.
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2.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order

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is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an
opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion,
and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days

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of receipt of any opposition.

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3.

Petitioner is reminded that all communications with the Court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep

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the Court informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: March 27, 2017

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JAMES DONATO
United States District Judge

United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN BRUCE MCFARLANE,

Case No. 16-cv-06401-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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STEPHEN FREITAS,
Defendant.

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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.

United States District Court
Northern District of California

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That on March 27, 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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Alan Bruce McFarlane
P.O. Box 9554
Santa Rosa, CA 95405-1554

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Dated: March 27, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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