Ware v. Koenig

Filing 7

ORDER TO SHOW CAUSE. Signed by Judge James Donato on 4/26/2021. (lrcS, COURT STAFF) (Filed on 4/26/2021)<hr><center>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)</center>

Case 3:21-cv-01069-JD Document 7 Filed 04/26/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DERRICK A. WARE,
Petitioner,

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Re: Dkt. No. 2

C. KOENIG,
Respondent.

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United States District Court
Northern District of California

ORDER FOR RESPONDENT TO
SHOW CAUSE

v.

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Case No. 21-cv-01069-JD

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Derrick Ware, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner was convicted in Contra Costa County, which is in this district, so

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venue is proper here. See 28 U.S.C. § 2241(d).
BACKGROUND

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Petitioner was found guilty by a jury of kidnapping for sexual purposes as well as several

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other sexual offenses and related enhancements. People v. Ware, No. A142909, 2018 WL

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6718506, at *1 (Cal. Ct. App. Dec. 21, 2018). Petitioner was sentenced to 100 years to life in

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prison. Id. at 2. The California Court of Appeal affirmed the conviction. Id. at 1. The California

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Supreme Court denied review. Petition at 3 Petitioner’s state habeas petitions were all denied.

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Id. at 3-4.
DISCUSSION

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STANDARD OF REVIEW

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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); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

Case 3:21-cv-01069-JD Document 7 Filed 04/26/21 Page 2 of 3

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS

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As grounds for federal habeas relief, petitioner asserts that1: (1) the prosecution failed to
disclose favorable and impeachment evidence and the trial court erred in ruling that the

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United States District Court
Northern District of California

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prosecution met its discovery obligations (Petition at 7, 65); (2) his rights were denied in a hearing

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regarding conflicts between a codefendant’s attorney and the prosecution and the violation of a

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joint defense agreement (Petition at 70); (3) the trial court issued erroneous jury instructions

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regarding the victim and consent and intoxication (Petition at 80); (4) the jury repeatedly observed

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him in shackles and the trial court erred by not declaring a mistrial and by issuing erroneous jury

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instructions regarding shackling (Petition at 83, 91); (5) the trial court erred by failing to inquire of

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jurors who observed him in shackles and also heard a deputy district attorney discussing the case

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in the hallway (Petition at 93); (6) there was juror misconduct (Petition at 95); (7) the trial court

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erred in in denying expert evidence presented by the defense (Petition at 98); and (8) and the trial

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court erred by issuing a jury instruction that improperly bolstered the victim’s credibility (Petition

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at 105). Liberally construed, these claims are sufficient to require a response.
CONCLUSION

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1.

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The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. The clerk

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shall serve by electronic mail a copy of this order on the Attorney General of the State of

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California at [e-mail]. The clerk also shall serve a copy of this order on

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The Court has grouped similar claims together.
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petitioner by regular mail. Respondent can view the petition on the electronic docket (Docket No.

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1).

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2.

Respondent shall file with the Court and serve on petitioner, within sixty (60) days

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of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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issues presented by the petition.

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United States District Court
Northern District of California

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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 twenty-eight (28) days of his receipt of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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

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2254 Cases. If respondent files such a motion, it is due sixty (60) days from the date this order is

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entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an

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opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion,

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and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days

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of receipt of any opposition.

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4.

Petitioner is reminded that all communications with the Court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 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. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

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1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: April 26, 2021

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JAMES DONATO
United States District Judge

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