Cesar Aguirre v. Alameda Superior Court et al

Filing 21

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 8/17/2018. Signed by Judge Richard Seeborg on 6/11/18. (cl, COURT STAFF) (Filed on 6/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CESAR AGUIRRE,

Case No. 16-cv-06933-RS

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER TO SHOW CAUSE

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ALAMEDA SUPERIOR COURT, et al.,
Defendants.

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INTRODUCTION
Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state

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conviction. The petition for such relief is now before the Court for review pursuant to

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28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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The petition states cognizable claims. Respondent shall file a response to the
petition on or before August 17, 2018, unless an extension is granted.

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BACKGROUND
Aguirre was arrested at an Occupy Oakland demonstration in 2011. In August of 2012, he

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was convicted of felony vandalism. The superior court imposed five years’ probation, with six

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months jail time. Bail was granted on appeal, and Aguirre was released from jail after serving

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almost one month of his sentence. Further stays of the sentence were granted as Aguirre pursued

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state habeas remedies. He had some success, obtaining certain remands, including one for an

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evidentiary hearing. Ultimately, however, he exhausted his state habeas options without having

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his conviction or sentence set aside. Aguirre then obtained from this Court an order staying the

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execution of the remainder of his sentence.

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In response to an order inquiring as to whether issues remain to be adjudicated,

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petitioner has stated the grounds upon which he contends habeas relief remains

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appropriate.
DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in

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United States District Court
Northern District of California

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). A district court considering an application for a writ of habeas corpus shall

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

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should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

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only where the allegations in the petition are vague or conclusory, palpably incredible, or

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner claims (1) the prosecution

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committed misconduct in the three instances set out in the petition; (2) defense counsel

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rendered ineffective assistance; (3) the trial court committed judicial misconduct; and, (4)

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there was cumulative error. When liberally construed, these claims are cognizable on

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federal habeas review.

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CONCLUSION

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1. The Clerk shall serve a copy of this order, the petition and all attachments

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thereto, on respondent and respondent’s counsel, the Attorney General for the State of

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California. The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner on or before August

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CASE NO.

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16-cv-06933-RS

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17, 2018 an answer conforming in all respects to Rule 5 of the Rules Governing Section

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2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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petitioner’s cognizable claims. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state trial record that previously have been

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transcribed and that are relevant to a determination of the issues presented by the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.
4. In lieu of an answer, respondent may file, on or before August 17, 2018, a

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motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to

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United States District Court
Northern District of California

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Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the Court and serve on respondent an opposition or statement of

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non-opposition within thirty (30) days of the date the motion is filed, and respondent shall

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file with the Court and serve on petitioner a reply within fifteen (15) days of the date any

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opposition is filed.

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IT IS SO ORDERED.

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Dated: June 11, 2018
_________________________
RICHARD SEEBORG
United States District Judge

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CASE NO.

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16-cv-06933-RS