Poletti v. Hatton

Filing 3

ORDER TO SHOW CAUSE. Signed by Magistrate Judge Jacqueline Scott Corley on 4/10/2017. (ahm, COURT STAFF) (Filed on 4/10/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY A POLETTI, Case No. 17-cv-01936-JSC Plaintiff, 8 ORDER TO SHOW CAUSE v. 9 10 SHAWN HATTON, Re: Dkt. No. 1 Defendant. United States District Court Northern District of California 11 12 13 Petitioner Anthony A. Poletti, a prisoner of the State of California, brings a petition for writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the $5.00 filing fee. His petition 15 arises out of his December 2013 conviction in Santa Cruz County Superior Court for two forcible 16 sexual offenses against his stepdaughter and subsequent sentence to a total of 18 years and 8 months in 17 prison. These convictions resulted after Petitioner’s initial convictions were reversed following his 18 first trial. The Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 19 20 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the 21 Constitution of the United States.” 28 U.S.C. § 2254(a). It shall “award the writ or issue the order 22 directing the respondent to show cause why the writ should not be granted, unless it appears from the 23 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary 24 dismissal of a petition is appropriate only where the petition’s allegations are vague, conclusory, 25 palpably incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 26 1990). 27 28 Petitioner raises several claims challenging the constitutionality of his conviction in state court. First, that his rights to a fair trial, due process of law, and a reliable verdict, guaranteed him by the 1 Fifth, Sixth, and Fourteenth Amendments, were violated by a pattern of egregious prosecutorial 2 misconduct involving the district attorney repeatedly disrespecting the judge in front of the jury and 3 flouting the court’s in limine motions, thereby allowing the jury to hear unfair, prejudicial evidence 4 about Petitioner’s first trial and creating the illusion that the trial court sided with the defense to deny 5 the prosecution a fair chance to present its best case. Second, that Petitioner’s same rights were 6 violated by the state’s suppression of favorable, material evidence—namely, that in violation of Brady 7 v. Maryland, 373 U.S. 83 (1963), the prosecutor failed to disclose to Petitioner that the complaining 8 witness had changed her story about one of the rape incidents before she testified at trial. Third, that 9 the trial judge erroneously excluded evidence that Petitioner had been acquitted of two uncharged rape offenses, testimony regarding which was introduced by the prosecution in its case-in-chief. Fourth, 11 United States District Court Northern District of California 10 that the cumulative effect of the above errors denied Petitioner the right to a fair trial in violation of the 12 Fourteenth Amendment. 13 14 These claims, when liberally construed and considered in connection with the Petition’s factual recitation, are sufficient to avoid summary dismissal and require an answer. 15 Accordingly, the Court orders as follows: 16 1. The Clerk shall serve respondent and the respondent’s attorney, the Attorney General of 17 18 the State of California, with a copy of this order and the petition with all attachments. 2. Respondent shall file with the court and serve on Petitioner, within 60 days of service of 19 the petition and this Order, an answer conforming in all respects to Rule 5 of the Rules Governing 20 Section 2254 Cases, showing cause why a writ of habeas corpus should not issue. Respondent 21 shall file with the answer and serve on Petitioner a copy of all portions of the state trial record that 22 have been transcribed previously and that are relevant to a determination of the issues presented 23 by the Petition. 24 25 26 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 the date the answer is filed. 3. Respondent may file, within 60 days, a motion to dismiss on procedural grounds in lieu 27 of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 28 Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and 2 1 serve on Respondent an opposition or statement of non-opposition within 30 days of the date the 2 motion is filed, and Respondent shall file with the court and serve on Petitioner a reply within 14 3 days of the date any opposition is filed. 4 5 6 7 4. The Clerk shall send a notice to Petitioner and Respondent regarding consenting to the jurisdiction of a magistrate judge. IT IS SO ORDERED. Dated: April 10, 2017 8 ________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 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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