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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MYKAL DURRELL MYRICK, AR2695,
Petitioner,

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United States District Court
Northern District of California

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ORDER TO SHOW CAUSE

v.

(ECF Nos. 2 & 7)

JOEL D. MARTINEZ, Warden,
Respondent.

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Case No. 17-cv-03122-SK (PR)

Petitioner, a state prisoner incarcerated at the Sierra Conservation Center in Jamestown,

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California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a conviction from Santa Clara County Superior Court. He also seeks leave to proceed

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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

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Petitioner was convicted by a jury of second degree murder. The jury also found true the

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allegation that petitioner personally used a deadly and dangerous weapon, a knife, in the

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commission of the offense. On August 30, 2013, petitioner was sentenced to 16 years to life in

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state prison.

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Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the

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Supreme Court of California, which on July 8, 2015 denied review. He also unsuccessfully sought

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collateral relief from the state courts until the Supreme Court of California denied his final state

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habeas petition on February 15, 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 in

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

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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

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

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

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B.

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Claims
Petitioner seeks federal habeas corpus relief by raising three claims: (1) prosecutorial

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Northern District of California

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misconduct, (2) racially discriminatory jury selection, and (3) ineffective assistance of trial

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counsel. Liberally construed, the claims appear arguably cognizable under § 2254 and merit an

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

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must 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.

Petitioner’s request to proceed IFP (ECF Nos. 2 & 7) is GRANTED.

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2.

The clerk shall serve (1) a copy of this order, (2) the petition and all attachments

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

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accompanying magistrate judge jurisdiction consent or declination to consent form (requesting

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that respondent consent or decline to consent within 28 days of receipt of service), on respondent

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and respondent’s attorney, the Attorney General of the State of California. The clerk also shall

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serve a copy of this order on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within 60 days of the

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

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

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the
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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

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

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

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statement of non-opposition not more than 28 days after the motion is served and filed, and

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respondent must serve and file a reply to an opposition not more than 14 days after the opposition

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is served and filed.

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5.

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

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Northern District of California

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

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

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IT IS SO ORDERED.
Dated: July 10, 2017
______________________________________
SALLIE KIM
United States Magistrate Judge

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