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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALAN BRUCE MCFARLANE, Petitioner, 8 9 10 ORDER FOR RESPONDENT TO SHOW CAUSE v. STEPHEN FREITAS, Respondent. 11 United States District Court Northern District of California Case No. 16-cv-06401-JD 12 13 14 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 15 16 A jury found petitioner guilty of unlawfully possessing an assault weapon and he was 17 sentenced to 36 months of probation. Petition at 1; People v. Macfarlane, No. A141326, 2016 WL 18 3634286, at *1 (Cal. Ct. App. June 29, 2016). The California Court of Appeal affirmed the 19 conviction. Macfarlane, 2016 WL 3634286, at *2. The California Supreme Court denied review. 20 Petition at 2. DISCUSSION 21 22 STANDARD OF REVIEW 23 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 24 custody pursuant to the judgment of a State court only on the ground that he is in custody in 25 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 26 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 27 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 28 1 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 2 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 3 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 4 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 5 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 6 688, 689 (1st Cir. 1970)). 7 LEGAL CLAIMS 8 Petitioner’s sole ground for federal habeas relief is that his rights to due process, a fair trial 9 and to present a defense were violated by the trial court’s ruling that quashed and excluded the 10 testimony of a deputy who was called as petitioner’s witness. Liberally construed, this claim is 11 United States District Court Northern District of California sufficient to require a response. 12 CONCLUSION 13 1. Because all previously dates have been vacated, respondent shall file with the Court 14 and serve on petitioner, within fifty-six (56) days of the issuance of this order, an answer 15 conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause 16 why a writ of habeas corpus should not be granted. Respondent shall file with the answer and 17 serve on petitioner a copy of all portions of the state trial record that have been transcribed 18 previously and that are relevant to a determination of the issues presented by the petition. 19 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 20 Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 21 22 2. Respondent may file a motion to dismiss on procedural grounds in lieu of an 23 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 24 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order 25 26 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 27 of receipt of any opposition. 28 2 1 3. Petitioner is reminded that all communications with the Court must be served on 2 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 3 the Court informed of any change of address and must comply with the Court’s orders in a timely 4 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 6 1997) (Rule 41(b) applicable in habeas cases). 7 8 IT IS SO ORDERED. Dated: March 27, 2017 9 10 JAMES DONATO United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ALAN BRUCE MCFARLANE, Case No. 16-cv-06401-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 STEPHEN FREITAS, Defendant. 8 9 10 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 11 12 13 14 15 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. 16 17 18 Alan Bruce McFarlane P.O. Box 9554 Santa Rosa, CA 95405-1554 19 20 Dated: March 27, 2017 21 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28 4

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