Toscano v. Lizarraga

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 10/6/2017. Signed by Judge William Alsup on 7/27/17. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 7/27/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EVARISTO TOSCANO,

No. C 17-4060 WHA (PR)

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Petitioner,

ORDER TO SHOW CAUSE

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JOE A. LIZARRAGA,
For the Northern District of California

United States District Court

v.
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Respondent.
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INTRODUCTION
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Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. 2254 challenging his state court conviction. For the reasons discussed
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below, respondent is ordered to show cause why the petition should not be granted.
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STATEMENT
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Petitioner was convicted in Alameda County Superior Court of one count of first-degree
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murder and three counts of attempted murder, and firearm allegations related to those
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convictions were found true. His appeals to the California Court of Appeals and the California
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Supreme Court were denied. He habeas petition in the state courts was also denied. Thereafter,
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petitioner filed the instant federal petition.
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ANALYSIS
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A.

STANDARD OF REVIEW

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This court may entertain a petition for 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); Rose
v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

Petitioner claims that: (1) the admission of a double hearsay statement by a witness

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For the Northern District of California

United States District Court

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LEGAL CLAIMS

violated various constitutional provisions and was not harmless error; (2) the police lost

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material exculpatory evidence; (3) there was not adequate “comparable” evidence to the

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exculpatory recorded interviews that were lost; (4) there was evidence that the recorded

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interviews were lost in bad faith; (5) his right to due process was violated because the trial court

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did not allow him to file a motion to sever, which would have been meritorious under California

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law; (6) the trial judge’s comments while cross-examining an expert witness violated his right

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to due process and to a jury trial; and (7) petitioner did not receive effective assistance of

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counsel at trial. When liberally construed, these claim warrant a response.

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CONCLUSION

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1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within sixty-three (63)

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days 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 based on the claim found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are

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relevant 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 twenty-eight days of the date the answer is filed.
3. Respondent may file, within sixty-three (63) days, a motion to dismiss on procedural

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grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file

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with the court and serve on respondent an opposition or statement of non-opposition within

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twenty-eight days of the date the motion is filed, and respondent shall file with the court and

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serve on petitioner a reply within fourteen days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the court must be served on
respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

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For the Northern District of California

United States District Court

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

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.

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Dated: July
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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