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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THOMAS JOSEPH CILLUFFO, Plaintiff. 8 9 10 United States District Court Northern District of California 11 Case No.17-cv-00310-SK ORDER TO SHOW CAUSE v. OSCAR VEGA, Defendant. 12 13 Petitioner Thomas Joseph Cilluffo, has filed a petition for a writ of habeas corpus pursuant 14 to 28 U.S.C. § 2254. Petitioner was convicted in Napa County, which is in this district, so venue 15 is proper here. See 28 U.S.C. § 2241(d). Petitioner has paid the filing fee. BACKGROUND 16 17 Petitioner was convicted by a jury in the Superior Court of the State of California in and 18 for the County of Napa. On February 26, 2015, he was sentenced to 3 years of felony probation. 19 Petitioner unsuccessfully appealed his conviction to the California Court of Appeal, which 20 affirmed the decision in 2015, and the Supreme Court of California, which denied review of a 21 petition in 2016. DISCUSSION 22 23 A. Legal Standard 24 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall 27 "award the writ or issue an order directing the respondent to show cause why the writ should not 28 be granted, unless it appears from the application that the applicant or person detained is not 1 entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations 2 in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 3 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). B. Petitioner’s Legal Claims 4 Petitioner seeks federal habeas corpus relief by raising the claim that the trial court gave 5 6 two special instructions proffered by the prosecutor, which shifted the burden of proof to 7 Petitioner in order to prove that he was not guilty. Specifically, the jury was instructed that in 8 order to assert a citizen’s arrest, it was incumbent upon Petitioner to prove beyond a reasonable 9 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 11 United States District Court Northern District of California 10 Fourteenth Amendment and that such directions “subvert the presumption of innocence accorded 12 to accused persons” and “invades the truthfinding task assigned solely to juries.” Carella v. 13 California, 491 U.S. 263, 265 (1989). Liberally construed, the claims appear colorable under 28 14 U.S.C. § 2254 and merit an answer from respondents. CONCLUSION 15 For the foregoing reasons and for good cause shown: 16 1. The clerk shall serve by certified mail a copy of this order and the petition and all 17 18 attachments thereto upon respondents. The clerk shall also serve a copy of this order on 19 petitioner. 20 2. Respondents shall file with the court and serve on petitioner, within 60 days of the date of 21 this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 22 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent 23 shall file with the answer and serve on petitioner a copy of all portions of the 24 administrative record that are relevant to a determination of the issues presented by the 25 petition. 3. If the petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 26 court and serving it on respondent within 30 days of his receipt of the answer. 27 28 // 2 1 IT IS SO ORDERED. 2 Dated: 3 4 ______________________________________ SALLIE KIM United States Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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