Vivano v. Lizarraga

Filing 6

ORDER TO SHOW CAUSE re 1 Petition for Writ of Habeas Corpus AND as to 2 First MOTION for Stay and Abeyance. Responses due by 3/12/2018. Signed by Judge Jacqueline S. Corley on 2/13/18. (klhS, COURT STAFF) (Filed on 2/13/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OCTAVIO VIVANO,

Case No. 18-cv-00028-JSC

Plaintiff,
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v.
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JOE A. LIZARRAGA,
Defendant.

ORDER TO SHOW CAUSE RE
PETITION FOR WRIT OF HABEAS
CORPUS AND MOTION FOR STAY
Re: Dkt. Nos. 1, 2

United States District Court
Northern District of California

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Petitioner, a prisoner of the State of California, filed a habeas corpus petition pursuant to 28

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U.S.C. § 2254 and a motion for stay and abeyance. (Dkt. Nos. 1, 2.) Petitioner has paid the $5.00

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filing fee. His petition sets forth five claims challenging the constitutionality of petitioner’s

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conviction in state court: (1) Petitioner’s right to cross examination of the victim under the Fifth and

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Sixth Amendments, (2) ineffective assistance of trial counsel in violation of the Sixth and Fourteenth

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Amendments due to counsel’s failure to object to the trial court’s limitation on cross examination of

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the victim, (3) ineffective assistance of trial counsel in violation of the Sixth and Fourteenth

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Amendments due to counsel’s failure to explain facts pertinent to the Las Vegas assault to the trial

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court, (4) ineffective assistance of appellate counsel in violation of the Fourteenth Amendment, and

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(5) violation of the Confrontation Clause due to the admission of the victim’s statement from the

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sexual assault report identifying the assailant’s race through the testimony of a non-testifying sexual

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assault nurse. These claims, when liberally construed, are cognizable and potentially meritorious.

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The Clerk shall serve respondent and the respondent’s attorney, the Attorney General of
the State of California, with a copy of this order and the petition with all attachments.
In light of Petitioner’s motion to stay, before the Court orders Respondent to answer the
petition, Respondent shall respond to the motion for a stay. Respondent is ordered to file a

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res
sponse or a statement of non-opposit
tion by Marc h 12, 2018.
c

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S
RED.
IT IS SO ORDER
Da
ated: Februar 13, 2018
ry

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__
___________
__________
____
JA
ACQUELINE SCOTT CORLEY
E
Un
nited States M
Magistrate J
Judge

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United States District Court
Northern District of California

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