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).
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
United States District Court
Northern District of California
11
12
13
14
KEVIN LAMAR MOORE,
Petitioner,
v.
Case No. 16-cv-06976-WHO (PR)
ORDER TO SHOW CAUSE
DEBBIE ASUNCION,
Respondent.
15
16
17
18
INTRODUCTION
Petitioner Kevin Lamar Moore seeks federal habeas relief from his state
19
convictions. The petition for such relief has been reviewed under 28 U.S.C. § 2243 and
20
Rule 4 of the Rules Governing Section 2254 Cases and has been found to state cognizable
21
claims. Accordingly, respondent shall file an answer or dispositive motion in response to
22
the habeas petition on or before April 10, 2017, unless an extension is granted.
23
BACKGROUND
24
According to the petition, in 2013 a Sonoma County Superior Court jury convicted
25
Moore of robbery and assault, consequent to which he was sentenced to 35 years to life in
26
state prison.
27
28
1
2
DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person
3
in custody pursuant to the judgment of a State court only on the ground that he is in
4
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
5
§ 2254(a). A district court considering an application for a writ of habeas corpus shall
6
“award the writ or issue an order directing the respondent to show cause why the writ
7
should not be granted, unless it appears from the application that the applicant or person
8
detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate
9
only where the allegations in the petition are vague or conclusory, palpably incredible, or
10
patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
United States District Court
Northern District of California
11
As grounds for federal habeas relief, Moore claims that (1) his constitutional rights
12
were violated when he was tried jointly with a co-defendant; (2) the trial court violated his
13
right to due process by failing to grant his motion for a mistrial and his motion for a new
14
trial; (3) there was insufficient evidence to support his robbery conviction; and (4) his
15
sentence violates the Eighth Amendment. When liberally construed, these claims are
16
cognizable on federal habeas review.
17
CONCLUSION
18
1. The Clerk shall serve a copy of this order, the petition and all attachments
19
thereto, on respondent and respondent’s counsel, the Attorney General for the State of
20
California. The Clerk shall also serve a copy of this order on petitioner.
21
2. Respondent shall file with the Court and serve on petitioner, on or before April
22
10, 2017, an answer conforming in all respects to Rule 5 of the Rules Governing Section
23
2254 Cases, showing cause why a writ of habeas corpus should not be granted based on
24
petitioner’s cognizable claims. Respondent shall file with the answer and serve on
25
petitioner a copy of all portions of the state trial record that previously have been
26
transcribed and that are relevant to a determination of the issues presented by the petition.
27
28
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
2
1
answer is filed.
2
4. In lieu of an answer, respondent may file, on or before April 10, 2017, a motion
3
to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4
4
of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner
5
shall file with the Court and serve on respondent an opposition or statement of non-
6
opposition within thirty (30) days of the date the motion is filed, and respondent shall file
7
with the Court and serve on petitioner a reply within fifteen (15) days of the date any
8
opposition is filed.
9
10
United States District Court
Northern District of California
11
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
12
Court and respondent informed of any change of address and must comply with the
13
Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this
14
action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
15
16
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.
17
8. The Court notes that the filing fee has been paid.
18
IT IS SO ORDERED.
19
Dated: February 1, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?