Camacho v. Rackley

Filing 7

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 12/22/2017. Signed by Magistrate Judge Jacqueline Scott Corley on 10/23/2017. (ahm, COURT STAFF) (Filed on 10/23/2017)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 JORGE CAMACHO, 8 Plaintiff, 9 ORDER TO SHOW CAUSE v. 10 R. RACKLEY, 11 United States District Court Northern District of California Case No.17-cv-05168-JSC Defendant. 12 13 INTRODUCTION 14 Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ 15 16 of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence.1 Because the 17 petition states cognizable grounds for federal habeas relief, a response from Respondent is 18 warranted. 19 BACKGROUND 20 In 2011, Petitioner was convicted by a jury of three counts of first-degree murder under 21 22 special circumstances, conspiracy to commit murder, and participation in a street gang. The jury 23 also found allegations supporting sentence enhancements for gun use and gang affiliation to be 24 true. The trial court sentenced Petitioner to two consecutive terms of life in prison without the 25 possibility of parole, plus a term of 95 years to life in prison. The California Court of Appeal 26 27 1 28 Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 5 at 52.) 1 directed the trial court to vacate the gang enhancements on two counts, but otherwise affirmed the 2 judgment. In 2016, the California Supreme Court denied review. Petitioner then filed the instant 3 federal petition. 4 5 DISCUSSION I. 6 Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 7 custody pursuant to the judgment of a State court only on the ground that he is in custody in 8 9 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 writ should 11 United States District Court Northern District of California 10 not be granted, unless it appears from the application that the applicant or person detained is not 12 entitled thereto.” Id. § 2243. 13 14 II. Legal Claims Petitioner raises the following claims: (1) his right to due process was violated because one 15 16 17 of the counts of murder rested on a theory of vicarious liability not permitted under California law; (2) his convictions for one of the murders, for conspiracy to commit murder, and for participation 18 in a street gang violated his right to due process because they were based on uncorroborated 19 testimony of co-conspirators; (3) his convictions for one of the murders violated his right to due 20 process because there was insufficient evidence that the murder was committed in furtherance of 21 or as a reasonable and probable consequence of the conspiracy; (4) the trial court violated his right 22 to due process by admitting testimony about his participation in gang crimes; (5) the trial court 23 24 violated his right to due process by allowing the jury to use his prior arrest on gun charges to 25 convict him of conspiracy; (6) admission of his statement to a jail officer violated his privilege 26 against self-incrimination and his lawyer’s failure to object to the evidence violates his right to the 27 effective assistance of counsel; (7) instructions to the jury not to speculate why accomplices were 28 not being prosecuted violated his rights to confrontation and due process; (8) prosecutorial 2 1 misconduct violated his right to due process; and (9) his sentence violated his right to be free from 2 cruel and unusual punishment. These claims, when liberally construed, raise cognizable grounds 3 for relief. 4 5 6 7 CONCLUSION For the foregoing reasons and for good cause shown, 1. The Clerk shall serve a Magistrate Judge jurisdiction consent form, a copy of this Order, and the petition, and all attachments thereto, on Respondent and Respondent’s attorney, the 8 9 10 United States District Court Northern District of California 11 12 13 14 Attorney General of the State of California. The Clerk also shall serve a copy of this Order on Petitioner. 2. Respondent shall complete and file the Magistrate Judge jurisdiction consent form in accordance with the deadline provided on the form. 3. Respondent shall also file with the Court and serve on Petitioner, within ninety-one (91) days of the date this Order is issued, an answer conforming in all respects to Rule 5 of the Rules 15 16 17 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state 18 trial record that have been transcribed previously and that are relevant to a determination of the 19 issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by 20 filing a traverse (a reply) with the Court and serving it on Respondent within twenty-eight (28) 21 days of the date the answer is filed. 22 4. Respondent may, within ninety-one (91) days of the date this Order is issued, file a 23 24 motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory 25 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such 26 a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement 27 of non-opposition within twenty-eight (28) days of the date the motion is filed, and Respondent 28 3 1 2 3 shall file with the Court and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court 4 informed of any change of address by filing a separate paper captioned “Notice of Change of 5 Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so may 6 result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 7 Procedure 41(b). 8 9 10 IT IS SO ORDERED. Dated: October 23, 2017 United States District Court Northern District of California 11 12 JACQUELINE SCOTT CORLEY United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JORGE CAMACHO, Case No. 17-cv-05168-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 R. RACKLEY, Defendant. United States District Court Northern District of California 11 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 23, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 Jorge Camacho ID: #AH7931 Folsom State Prison/ 4-A3-07 P.O. Box 715071 Represa, CA 95671 21 22 23 Dated: October 23, 2017 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 5

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