Moore v. Asuncion

Filing 7

ORDER TO SHOW CAUSE - The Clerk shall serve a copy of this order, the petition and all attachments thereto, on respondent and respondent's counsel, the Attorney General for the State of California. Habeas Answer or Dispositive Motion due by 4/10/2017. Signed by Judge William H. Orrick on 02/01/2017. (jmdS, COURT STAFF) (Filed on 2/1/2017) (Additional attachment(s) added on 2/1/2017: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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KEVIN LAMAR MOORE,
Petitioner,
v.

Case No. 16-cv-06976-WHO (PR)
ORDER TO SHOW CAUSE

DEBBIE ASUNCION,
Respondent.

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INTRODUCTION
Petitioner Kevin Lamar Moore seeks federal habeas relief from his state

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convictions. The petition for such relief has been reviewed under 28 U.S.C. § 2243 and

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Rule 4 of the Rules Governing Section 2254 Cases and has been found to state cognizable

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claims. Accordingly, respondent shall file an answer or dispositive motion in response to

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the habeas petition on or before April 10, 2017, unless an extension is granted.

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BACKGROUND

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According to the petition, in 2013 a Sonoma County Superior Court jury convicted

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Moore of robbery and assault, consequent to which he was sentenced to 35 years to life in

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state prison.

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DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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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).

United States District Court
Northern District of California

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As grounds for federal habeas relief, Moore claims that (1) his constitutional rights

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were violated when he was tried jointly with a co-defendant; (2) the trial court violated his

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right to due process by failing to grant his motion for a mistrial and his motion for a new

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trial; (3) there was insufficient evidence to support his robbery conviction; and (4) his

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sentence violates the Eighth Amendment. When liberally construed, these claims are

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cognizable on 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 April

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10, 2017, 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
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.

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4. In lieu of an answer, respondent may file, on or before April 10, 2017, a motion

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to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4

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

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

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

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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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United States District Court
Northern District of California

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will
be granted provided they are filed on or before the deadline they seek to extend.

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8. The Court notes that the filing fee has been paid.

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IT IS SO ORDERED.

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Dated: February 1, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

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