Olachea v. Baughman et al

Filing 8

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 6/23/2017. Signed by Magistrate Judge Sallie Kim on 4/24/2017. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 4/24/2017)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ALEX MICHAEL OLACHEA, G00519, Petitioner, 9 ORDER TO SHOW CAUSE v. 10 11 Case No. 17-1149 SK (PR) (ECF No. 3) ERIC ARNOLD, Warden, United States District Court Northern District of California Respondent. 12 13 14 Petitioner, a state prisoner incarcerated at California State Prison, Solano, has filed 15 a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 16 conviction and sentence from Alameda County Superior Court. He also seeks leave to 17 proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. 18 19 20 21 The petition is properly before the undersigned for initial review because petitioner has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). BACKGROUND Petitioner was convicted by a jury of second degree murder, attempted murder, and 22 two counts of weapons possession. The jury also found true various enhancement 23 allegations, including four prior felony convictions and two prior prison terms. On 24 October 24, 2012, petitioner was sentenced to 76 years to life in state prison. 25 Petitioner appealed, but on December 31, 2014, the California Court of Appeal 26 affirmed the judgment of the trial court, and on March 18, 2015, the Supreme Court of 27 California denied review. He also unsuccessfully sought habeas relief from the state courts 28 until the state high court denied his final state petition on February 1, 2017. DISCUSSION 1 2 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a person 3 4 in custody pursuant to the judgment of a State court only on the ground that he is in 5 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 7 8 why the writ should not be granted, unless it appears from the application that the applicant 9 or person detained is not entitled thereto.” Id. § 2243. 10 United States District Court Northern District of California 11 B. Claims Petitioner seeks federal habeas corpus relief by raising several claims, including 12 improper admission of evidence, improper denial of immunity to a key defense witness, 13 failure to give jailhouse informant instruction in connection with prosecution’s jailhouse 14 informant witness, improper instructions on flight and attempted murder, verbal outburst 15 by prosecution’s jailhouse informant witness in front of jury while trial court conducted 16 sidebar, ineffective assistance of appellate counsel, and improper consolidation of charges. 17 Liberally construed, the claims appear cognizable under § 2254 and merit an answer from 18 respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must 19 construe pro se petitions for writs of habeas corpus liberally). CONCLUSION 20 21 For the foregoing reasons and for good cause shown, 22 1. 23 24 Petitioner’s request to proceed in forma pauperis (ECF No. 3) is GRANTED. 2. The clerk shall serve (1) a copy of this order, (2) the petition and all 25 attachments thereto, and (3) a notice of assignment of prisoner case to a United States 26 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to 27 consent form (requesting that respondent consent or decline to consent within 28 days of 28 receipt of service), on respondent and respondent’s attorney, the Attorney General of the 2 1 2 State of California. The clerk also shall serve a copy of this order on petitioner. 3. Respondent shall file with the court and serve on petitioner, within 60 days 3 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 4 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 5 granted. Respondent shall file with the answer and serve on petitioner a copy of all 6 portions of the state trial record that have been transcribed previously and that are relevant 7 to a determination of the issues presented by the petition. 8 9 10 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an United States District Court Northern District of California 11 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 12 Section 2254 Cases. If respondent files such a motion, petitioner must serve and file an 13 opposition or statement of non-opposition not more than 28 days after the motion is served 14 and filed, and respondent must serve and file a reply to an opposition not more than 14 15 days after the opposition is served and filed. 16 5. Petitioner is reminded that all communications with the court must be served 17 on respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 18 must also keep the court and all parties informed of any change of address. 19 20 IT IS SO ORDERED. Dated: April 24, 2017 _________________________ SALLIE KIM United States Magistrate Judge 21 22 23 24 25 26 27 28 3

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