Myrick v. Martinez

Filing 8

ORDER TO SHOW CAUSE. Petitioner's request to proceed IFP (ECF Nos. 2 & 7 ) is GRANTED. Habeas Answer or Dispositive Motion due by 9/8/2017. Signed by Magistrate Judge Sallie Kim on 7/10/2017. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 7/10/2017) Modified on 7/10/2017 (mklS, COURT STAFF).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 MYKAL DURRELL MYRICK, AR2695, Petitioner, 10 United States District Court Northern District of California 11 12 ORDER TO SHOW CAUSE v. (ECF Nos. 2 & 7) JOEL D. MARTINEZ, Warden, Respondent. 13 14 Case No. 17-cv-03122-SK (PR) Petitioner, a state prisoner incarcerated at the Sierra Conservation Center in Jamestown, 15 California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 16 challenging a conviction from Santa Clara County Superior Court. He also seeks leave to proceed 17 in forma pauperis (IFP) under 28 U.S.C. § 1915. 18 19 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 20 21 Petitioner was convicted by a jury of second degree murder. The jury also found true the 22 allegation that petitioner personally used a deadly and dangerous weapon, a knife, in the 23 commission of the offense. On August 30, 2013, petitioner was sentenced to 16 years to life in 24 state prison. 25 Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the 26 Supreme Court of California, which on July 8, 2015 denied review. He also unsuccessfully sought 27 collateral relief from the state courts until the Supreme Court of California denied his final state 28 habeas petition on February 15, 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 in 3 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause why the 6 7 writ should not be granted, unless it appears from the application that the applicant or person 8 detained is not entitled thereto.” Id. § 2243. 9 B. 10 Claims Petitioner seeks federal habeas corpus relief by raising three claims: (1) prosecutorial United States District Court Northern District of California 11 misconduct, (2) racially discriminatory jury selection, and (3) ineffective assistance of trial 12 counsel. Liberally construed, the claims appear arguably cognizable under § 2254 and merit an 13 answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 14 must construe pro se petitions for writs of habeas corpus liberally). CONCLUSION 15 16 For the foregoing reasons and for good cause shown, 17 1. Petitioner’s request to proceed IFP (ECF Nos. 2 & 7) is GRANTED. 18 2. The clerk shall serve (1) a copy of this order, (2) the petition and all attachments 19 thereto, and (3) a notice of assignment of prisoner case to a United States magistrate judge and 20 accompanying magistrate judge jurisdiction consent or declination to consent form (requesting 21 that respondent consent or decline to consent within 28 days of receipt of service), on respondent 22 and respondent’s attorney, the Attorney General of the State of California. The clerk also shall 23 serve a copy of this order on petitioner. 24 3. Respondent shall file with the court and serve on petitioner, within 60 days of the 25 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 26 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 27 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 28 trial record that have been transcribed previously and that are relevant to a determination of the 2 1 2 3 4 issues presented by the petition. 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 5 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 6 2254 Cases. If respondent files such a motion, petitioner must serve and file an opposition or 7 statement of non-opposition not more than 28 days after the motion is served and filed, and 8 respondent must serve and file a reply to an opposition not more than 14 days after the opposition 9 is served and filed. 10 5. Petitioner is reminded that all communications with the court must be served on United States District Court Northern District of California 11 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must also 12 keep the court and all parties informed of any change of address. 13 14 15 16 IT IS SO ORDERED. Dated: July 10, 2017 ______________________________________ SALLIE KIM United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 3

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