Morrison v. Lozano

Filing 6

ORDER TO SHOW CAUSE. Answer due 2/5/2021; traverse due 3/19/2021. Signed by Judge Edward M. Chen on 11/20/2020. (Respondent served via email). (afmS, COURT STAFF) (Filed on 11/20/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WARREN MORRISON,

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Petitioner,
ORDER TO SHOW CAUSE

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v.

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JARED LOZANO,

Docket No. 1
Respondent.

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United States District Court
Northern District of California

Case No. 20-cv-04239-EMC

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I.

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INTRODUCTION

Warren Morrison, an inmate currently housed at San Quentin State Prison, filed this pro se

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action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the

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Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254

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Cases.
II.

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BACKGROUND

Following a jury trial in San Mateo County Superior Court, Mr. Morrison was convicted of

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first degree murder and was found to have personally discharged a firearm in the commission of

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the offense. He was sentenced to 50 years to life in prison.

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Mr. Morrison appealed. His conviction was affirmed by the California Court of Appeal

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and his petition for review was denied by the California Supreme Court. The California Court of

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Appeal apparently granted a motion for recall of the sentencing, and Mr. Morrison is awaiting a

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new sentencing proceeding.

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III.

DISCUSSION

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). A

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district court considering an application for writ of habeas corpus shall “award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C.

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§ 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or

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conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d

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490, 491 (9th Cir. 1990).
Mr. Morrison’s federal petition for writ of habeas corpus alleges that the failure to properly

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instruct the jury on provocation denied him his Sixth and Fourteenth Amendment rights to present

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United States District Court
Northern District of California

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a defense and to have the State prove guilt beyond a reasonable doubt. Liberally construed, these

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claims are cognizable in a federal habeas proceeding and warrant a response.
IV.

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For the foregoing reasons,

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1.

CONCLUSION

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The petition states cognizable claims for violations of Mr. Morrison’s Sixth and

Fourteenth Amendment rights.
2.

The Clerk shall electronically serve a copy of this order upon Respondent and

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Respondent’s attorney, the Attorney General of the State of California, at the following email

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address: [e-mail]. The petition and any exhibits thereto are available via

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the Electronic Case Filing (ECF) system for the Northern District of California. The Clerk also

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shall serve by mail a copy of this order on Petitioner.

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3.

Respondent must file and serve upon Petitioner, on or before February 5, 2021, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of any court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petition.

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4.

If Petitioner wishes to respond to the answer, he must do so by filing a traverse and

serving it on Respondent on or before March 19, 2021.
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5.

Petitioner is responsible for prosecuting this case. Petitioner must promptly keep

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the Court informed of any change of address and must comply with the Court's orders in a timely

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fashion. Petitioner is cautioned that he must include the case name and case number for this case

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on any document he files in this case.

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IT IS SO ORDERED.

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Dated: November 20, 2020

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United States District Court
Northern District of California

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______________________________________
EDWARD M. CHEN
United States District Judge

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