Morales v. Lizarraga

Filing 5

ORDER TO SHOW CAUSE AND ORDER GRANTING 2 MOTION for Leave to Proceed in forma pauperis filed by Alberto Castillo Morales. Signed by Judge Laurel Beeler on 8/3/2017. (Attachments: # 1 Certificate/Proof of Service)(afmS, COURT STAFF) (Filed on 8/4/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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ALBERTO CASTILLO MORALES,

Case No. 17-cv-04005-LB

Petitioner,

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ORDER TO SHOW CAUSE

v.

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Re: ECF Nos. 1, 2

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JOE LIZARRAGA,
Respondent.

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INTRODUCTION

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Alberto Castillo Morales, a prisoner housed at the Mule Creek State Prison, filed this pro se

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action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He consented to proceed

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before a magistrate judge. (ECF No. 4.) 1 His petition is now before the court for review pursuant

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to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts. This order requires the respondent to respond to the petition.

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Record citations refer to material in the Electronic Case File (“ECF”); pinpoint cites are to the ECFgenerated page numbers at the top of the documents.

ORDER – No. 17-cv-04005-LB

STATEMENT

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Mr. Morales provides the following information in his petition and attachments thereto: After

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a jury trial in Sonoma County Superior Court, Mr. Morales was convicted of making criminal

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threats and providing false identification, and was found to have suffered three prior strike

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convictions and one prior serious felony conviction. On October 29, 2014, Mr. Morales was

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sentenced to 30 years to life in prison.

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He appealed. The California Court of Appeal affirmed Mr. Morales’ conviction and the
California Supreme Court denied his petition for review in 2016.
ANALYSIS

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

United States District Court
Northern District of California

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

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the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court

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considering an application for a writ of habeas corpus shall “award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears from

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the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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The petition alleges two claims: (1) Mr. Morales’ federal right to due process was violated

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because the evidence was insufficient to support the conviction for making a criminal threat, and

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(2) Mr. Morales’ federal right to due process was violated when the trial court denied his motion

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for a new trial. Liberally construed, these claims are cognizable in a federal habeas action.
CONCLUSION

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For the foregoing reasons,

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1. The petition warrants a response.

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2. The clerk shall serve by mail a copy of this order and the petition upon the respondent and

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

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serve a copy of this order on the petitioner.

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3. The clerk also shall serve a copy of the “consent or declination to magistrate judge

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jurisdiction” form upon the respondent and the respondent's attorney, the Attorney General of the

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State of California.
ORDER – No. 17-cv-04005-LB

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4. The respondent must file and serve upon the petitioner, on or before October 6, 2017, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. The respondent must file with the answer

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a copy of all portions of the court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petitioner.

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5. If the petitioner wishes to respond to the answer, he must do so by filing a traverse with the
court and serving it on the respondent on or before November 3, 2017.

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6. The petitioner is responsible for prosecuting this case. The petitioner must promptly keep

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the court informed of any change of address and must comply with the court's orders in a timely

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United States District Court
Northern District of California

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fashion.
7. The petitioner is cautioned that he must include the case name and case number for this
case on the first page of any document he submits to the court for consideration in this case.

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8. The petitioner’s in forma pauperis application is GRANTED. (ECF No. 2.)

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IT IS SO ORDERED.

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Dated: August 4, 2017
______________________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER – No. 17-cv-04005-LB

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