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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALEX MICHAEL OLACHEA, G00519,
Petitioner,

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ORDER TO SHOW CAUSE

v.
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Case No. 17-1149 SK (PR)

(ECF No. 3)
ERIC ARNOLD, Warden,

United States District Court
Northern District of California

Respondent.
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Petitioner, a state prisoner incarcerated at California State Prison, Solano, has filed

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a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction and sentence from Alameda County Superior Court. He also seeks leave to

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proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.

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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

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two counts of weapons possession. The jury also found true various enhancement

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allegations, including four prior felony convictions and two prior prison terms. On

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October 24, 2012, petitioner was sentenced to 76 years to life in state prison.

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Petitioner appealed, but on December 31, 2014, the California Court of Appeal

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affirmed the judgment of the trial court, and on March 18, 2015, the Supreme Court of

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California denied review. He also unsuccessfully sought habeas relief from the state courts

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until the state high court denied his final state petition on February 1, 2017.

DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a person

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

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a).
It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.” Id. § 2243.

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United States District Court
Northern District of California

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B.

Claims
Petitioner seeks federal habeas corpus relief by raising several claims, including

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improper admission of evidence, improper denial of immunity to a key defense witness,

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failure to give jailhouse informant instruction in connection with prosecution’s jailhouse

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informant witness, improper instructions on flight and attempted murder, verbal outburst

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by prosecution’s jailhouse informant witness in front of jury while trial court conducted

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sidebar, ineffective assistance of appellate counsel, and improper consolidation of charges.

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Liberally construed, the claims appear cognizable under § 2254 and merit an answer from

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respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must

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construe pro se petitions for writs of habeas corpus liberally).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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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

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attachments thereto, and (3) a notice of assignment of prisoner case to a United States

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magistrate judge and accompanying magistrate judge jurisdiction consent or declination to

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consent form (requesting that respondent consent or decline to consent within 28 days of

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receipt of service), on respondent and respondent’s attorney, the Attorney General of the
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State of California. The clerk also shall serve a copy of this order on petitioner.
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Respondent shall file with the court and serve on petitioner, within 60 days

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of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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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.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

United States District Court
Northern District of California

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If respondent files such a motion, petitioner must serve and file an

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opposition or statement of non-opposition not more than 28 days after the motion is served

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and filed, and respondent must serve and file a reply to an opposition not more than 14

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days after the opposition is served and filed.

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5.

Petitioner is reminded that all communications with the court must be served

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on respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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must also keep the court and all parties informed of any change of address.

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IT IS SO ORDERED.
Dated: April 24, 2017

_________________________
SALLIE KIM
United States Magistrate Judge

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