Vivano v. Lizarraga

Filing 9

***Please disregard. Filed in error. See docket number 8 .*** ORDER TO SHOW CAUSE NO. 2. Signed by Magistrate Judge Jacqueline Scott Corley on 2/28/2018. (ahm, COURT STAFF) (Filed on 2/28/2018) Modified on 2/28/2018 (ahm, COURT STAFF).

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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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ORDER TO SHOW CAUSE NO. 2

v.
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JOE A. LIZARRAGA,

Re: Dkt. Nos. 1, 2, 6

Defendant.

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 conviction

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

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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 (5)

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violation of the Confrontation Clause due to the admission of the victim’s statement from the sexual

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

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nurse.

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The Court issued an Order to Show Cause directing Respondent to respond to the motion for a

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stay or to file a statement of non-opposition by March 12, 2018. (Dkt. No. 6.) On February 26, 2018,

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counsel for Petitioner filed a letter stating the California Supreme Court has denied the habeas corpus

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petition and therefore administrative remedies have been exhausted. (Dkt. No. 7.) Accordingly,

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Petitioner’s motion for a stay is DISMISSED as moot and the Court’s previous Order to Show to

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Cause, Dkt. No. 6, is VACATED.

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Petitioner’s five claims, when liberally construed, are cognizable and potentially

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meritorious. Good cause appearing, Respondent is hereby ordered to show cause why the petition

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should not be granted.

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1. Consistent with Habeas Local Rule 2254-6, Respondent shall file with the Court and

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serve on Petitioner, within 60 days of service of the petition and this order, an answer conforming

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in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted based on the claims found cognizable herein. Respondent
shall file with the answer and serve on Petitioner a copy of all portions of the state trial record that

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United States District Court
Northern District of California

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have been transcribed previously and that are relevant to a determination of the issues presented

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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 30 days of the date the answer is filed.
2. Respondent may file, within 60 days, a motion to dismiss on procedural grounds in lieu

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of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the court and

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serve on Respondent an opposition or statement of non-opposition within 30 days of the date the

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motion is filed, and respondent shall file with the court and serve on Petitioner a reply within 14

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days of the date any opposition is filed.

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3. The Clerk shall send a notice to Respondent regarding consenting to the jurisdiction of a
magistrate judge. Petitioner has consented to this Court’s jurisdiction. (Dkt. No. 5.)

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This Order disposes of Docket No. 2 and 6.

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IT IS SO ORDERED.

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Dated: February 28, 2018

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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