Westover v. Frauenheim

Filing 16

ORDER TO SHOW CAUSE signed by Judge Laurel Beeler on 4/5/2017. Habeas Answer or Dispositive Motion due by 6/2/2017. (Attachments: # 1 Certificate/Proof of Service)(rxmS, COURT STAFF) (Filed on 4/5/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 GARY WESTOVER, Petitioner, 13 14 15 16 Case No.16-cv-07404-LB ORDER TO SHOW CAUSE v. Re: ECF No. 15 SHAWN HATTON, Respondent. 17 18 19 INTRODUCTION 20 Gary Westover, a prisoner housed at the Pleasant Valley State Prison, filed this pro se action 21 seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He consented to proceed before a 22 magistrate judge. (ECF No. 12.) The court reviewed his petition, determined that it stated two 23 claims and ordered Mr. Westover to file an amendment to allege facts in support of a third 24 potential claim. (ECF No. 13.) Mr. Westover then filed an amended petition, which now before 25 the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 26 Cases in the United States District Courts. This order requires the respondent to respond to the 27 amended petition. 28 ORDER — No. 16-cv-07404-LB STATEMENT 1 2 Mr. Westover provides the following information: After a jury trial in Santa Clara County 3 Superior Court, Mr. Westover was convicted of second degree murder, gross vehicular 4 manslaughter while intoxicated, driving while under the influence of alcohol and causing injury, 5 and driving with a blood alcohol level of 0.08 percent or more and causing injury. Sentence 6 enhancement allegations were found true. Mr. Westover was sentenced to a term of 15 years to life 7 consecutive to 10 years in state prison. 8 9 He appealed. The California Court of Appeal affirmed Mr. Westover’s conviction in 2015 and the California Supreme Court denied his petition for review in 2016. ANALYSIS 10 United States District Court Northern District of California 11 This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 12 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 13 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court 14 considering an application for a writ of habeas corpus shall “award the writ or issue an order 15 directing the respondent to show cause why the writ should not be granted, unless it appears from 16 the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 17 The amended petition alleges the following claims: (1) the trial court’s denial of Mr. 18 Westover’s request for a pinpoint instruction on his theory of the case violated Mr. Westover’s 19 Fourteenth Amendment right to due process; (2) the jury instructions reduced the prosecution’s 20 burden of proof to less than proof-beyond-a-reasonable-doubt, in violation of Mr. Westover’s 21 Fourteenth Amendment right to due process; (3) the exclusion of certain evidence about drunk 22 driving violated Mr. Westover’s Sixth Amendment rights to compulsory process and 23 confrontation, and Fourteenth Amendment right to due process; (4) Mr. Westover’s Fourteenth 24 Amendment right to due process was violated when the prosecutor engaged in misconduct during 25 closing argument with his comments on the meaning of the word “conscious;” (5) Mr. Westover 26 received ineffective assistance of trial counsel when counsel relied on the PAS results for a rising 27 blood-alcohol argument, but failed to show that the PAS machine was properly calibrated; and (6) 28 the cumulative effect of the foregoing errors requires the conviction to be set aside. Liberally ORDER — No. 16-cv-07404-LB 2 1 construed, these claims are cognizable in a federal habeas action. CONCLUSION 2 3 For the foregoing reasons, 4 1. The amended petition warrants a response. 5 2. The clerk shall serve by mail a copy of this order and the amended petition upon the 6 respondent and the respondent's attorney, the Attorney General of the State of California. The 7 clerk shall also serve a copy of this order on the petitioner. 8 9 10 3. The clerk also shall serve a copy of the “consent or declination to magistrate judge jurisdiction” form upon the respondent and the respondent's attorney, the Attorney General of the State of California. United States District Court Northern District of California 11 4. The respondent must file and serve upon the petitioner, on or before June 2, 2017, an 12 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 13 cause why a writ of habeas corpus should not be issued. The respondent must file with the answer 14 a copy of all portions of the court proceedings that have been previously transcribed and that are 15 relevant to a determination of the issues presented by the petitioner. 16 17 5. If the petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on the respondent on or before July 30, 2017. 18 6. The petitioner is responsible for prosecuting this case. The petitioner must promptly keep 19 the court informed of any change of address and must comply with the court's orders in a timely 20 fashion. 21 22 7. The petitioner is cautioned that he must include the case name and case number for this case on the first page of any document he submits to the court for consideration in this case. 23 IT IS SO ORDERED. 24 Dated: April 5, 2017 ______________________________________ LAUREL BEELER United States Magistrate Judge 25 26 27 28 ORDER — No. 16-cv-07404-LB 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?