Cilluffo v. Vega

Filing 5

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 4/17/2017. Signed by Magistrate Judge Sallie Kim on 2/14/2017. (mklS, COURT STAFF) (Filed on 2/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS JOSEPH CILLUFFO,
Plaintiff.

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United States District Court
Northern District of California

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Case No.17-cv-00310-SK
ORDER TO SHOW CAUSE

v.
OSCAR VEGA,
Defendant.

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Petitioner Thomas Joseph Cilluffo, has filed a petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner was convicted in Napa County, which is in this district, so venue

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is proper here. See 28 U.S.C. § 2241(d). Petitioner has paid the filing fee.
BACKGROUND

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Petitioner was convicted by a jury in the Superior Court of the State of California in and

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for the County of Napa. On February 26, 2015, he was sentenced to 3 years of felony probation.

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Petitioner unsuccessfully appealed his conviction to the California Court of Appeal, which

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affirmed the decision in 2015, and the Supreme Court of California, which denied review of a

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petition in 2016.
DISCUSSION

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A. Legal Standard

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall

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"award the writ or issue an order directing the respondent to show cause why the writ should not

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

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entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations

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in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
B. Petitioner’s Legal Claims

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Petitioner seeks federal habeas corpus relief by raising the claim that the trial court gave

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two special instructions proffered by the prosecutor, which shifted the burden of proof to

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Petitioner in order to prove that he was not guilty. Specifically, the jury was instructed that in

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order to assert a citizen’s arrest, it was incumbent upon Petitioner to prove beyond a reasonable

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doubt that the party subject to arrest was guilty of all of the elements in the instruction of assault
with a deadly weapon. Petitioner asserts this was a violation of the Due Process Clause of the

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United States District Court
Northern District of California

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Fourteenth Amendment and that such directions “subvert the presumption of innocence accorded

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to accused persons” and “invades the truthfinding task assigned solely to juries.” Carella v.

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California, 491 U.S. 263, 265 (1989). Liberally construed, the claims appear colorable under 28

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U.S.C. § 2254 and merit an answer from respondents.
CONCLUSION

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For the foregoing reasons and for good cause shown:

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1. The clerk shall serve by certified mail a copy of this order and the petition and all

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attachments thereto upon respondents. The clerk shall also serve a copy of this order on

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petitioner.

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2. Respondents shall file with the court and serve on petitioner, within 60 days of the date of

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this order, 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 issued. Respondent

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shall file with the answer and serve on petitioner a copy of all portions of the

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administrative record that are relevant to a determination of the issues presented by the

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

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court and serving it on respondent within 30 days of his receipt of the answer.

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//
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IT IS SO ORDERED.

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Dated:

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______________________________________
SALLIE KIM
United States Magistrate Judge

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United States District Court
Northern District of California

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