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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 EVARISTO TOSCANO, No. C 17-4060 WHA (PR) 9 Petitioner, ORDER TO SHOW CAUSE 10 JOE A. LIZARRAGA, For the Northern District of California United States District Court v. 11 12 Respondent. 13 / 14 INTRODUCTION 15 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 16 pursuant to 28 U.S.C. 2254 challenging his state court conviction. For the reasons discussed 17 below, respondent is ordered to show cause why the petition should not be granted. 18 STATEMENT 19 Petitioner was convicted in Alameda County Superior Court of one count of first-degree 20 murder and three counts of attempted murder, and firearm allegations related to those 21 convictions were found true. His appeals to the California Court of Appeals and the California 22 Supreme Court were denied. He habeas petition in the state courts was also denied. Thereafter, 23 petitioner filed the instant federal petition. 24 ANALYSIS 25 A. STANDARD OF REVIEW 26 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 28 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 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 2 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 3 court must “specify all the grounds for relief which are available to the petitioner ... and shall 4 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 5 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 6 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 7 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 8 688, 689 (1st Cir. 1970)). 9 B. Petitioner claims that: (1) the admission of a double hearsay statement by a witness 11 For the Northern District of California United States District Court 10 LEGAL CLAIMS violated various constitutional provisions and was not harmless error; (2) the police lost 12 material exculpatory evidence; (3) there was not adequate “comparable” evidence to the 13 exculpatory recorded interviews that were lost; (4) there was evidence that the recorded 14 interviews were lost in bad faith; (5) his right to due process was violated because the trial court 15 did not allow him to file a motion to sever, which would have been meritorious under California 16 law; (6) the trial judge’s comments while cross-examining an expert witness violated his right 17 to due process and to a jury trial; and (7) petitioner did not receive effective assistance of 18 counsel at trial. When liberally construed, these claim warrant a response. 19 CONCLUSION 20 1. The clerk shall mail a copy of this order and the petition with all attachments to the 21 respondent and the respondent's attorney, the Attorney General of the State of California. The 22 clerk shall also serve a copy of this order on the petitioner. 23 2. Respondent shall file with the court and serve on petitioner, within sixty-three (63) 24 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 25 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 26 granted based on the claim found cognizable herein. Respondent shall file with the answer and 27 serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are 28 relevant to a determination of the issues presented by the petition. 2 1 2 3 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 4 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 5 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 6 with the court and serve on respondent an opposition or statement of non-opposition within 7 twenty-eight days of the date the motion is filed, and respondent shall file with the court and 8 serve on petitioner a reply within fourteen days of the date any opposition is filed. 9 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 11 For the Northern District of California United States District Court 10 keep the court informed of any change of address and must comply with the court's orders in a 12 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 13 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 14 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 15 IT IS SO ORDERED. 16 Dated: July 17 27 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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