Furtado v. Calipatria State Prison

Filing 7

ORDER TO SHOW CAUSE. Signed by Judge Jacqueline Scott Corley on 7/8/2024. (ahm, COURT STAFF) (Filed on 7/8/2024)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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANDRE WILLIAM FURTADO, 7 Plaintiff, 8 ORDER TO SHOW CAUSE v. 9 CALIPATRIA STATE PRISON, 10 Defendant. 11 United States District Court Northern District of California Case No. 24-cv-02967-JSC INTRODUCTION 12 Petitioner, a prisoner of the State of California proceeding without an attorney, filed a 13 14 petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction in state 15 court. Because the petition states grounds for federal habeas relief that are capable of judicial 16 determination, a response from Respondent is ordered.1 BACKGROUND 17 18 Petitioner was convicted in Santa Clara County Superior Court for kidnaping and 19 sentenced to a term of 104 years to life in state prison. The California Court of Appeal affirmed 20 the judgment, and the California Supreme Court denied Petitioner’s petition for review. Petitioner 21 then filed the instant federal petition. DISCUSSION 22 23 I. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 24 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It 27 28 1 Petitioner has paid the filing fee. 1 shall “award the writ or issue an order directing the respondent to show cause why the writ should 2 not be granted, unless it appears from the application that the applicant or person detained is not 3 entitled thereto.” Id. § 2243. 4 II. 5 In claims one and two on the form petition, Petitioner contends there was insufficient 6 evidence to support his conviction for kidnaping. (ECF No. 1 at 5.) In claim three on the form, 7 Petitioner contends he received ineffective assistance of trial counsel because counsel failed to 8 object to victim restitution and to call favorable witnesses. (Id.) These claims, when liberally 9 construed, present grounds for federal habeas relief that are capable of judicial determination. 10 United States District Court Northern District of California Legal Claims CONCLUSION 11 For the foregoing reasons and for good cause shown, 12 1. The clerk shall serve electronically a copy of this order upon the respondent and the 13 respondent’s attorney, the Attorney General of the State of California, at the following email 14 addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and 15 the exhibits thereto are available via the Electronic Case Filing System for the Northern District of 16 California. The clerk shall serve by mail a copy of this order on petitioner. 17 2. Respondent shall file with the Court and serve on Petitioner, on or before October 4, 18 2024, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, 19 showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the 20 answer and serve on Petitioner a copy of all portions of the state trial record that have been 21 transcribed previously and that are relevant to a determination of the issues presented by the 22 petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse (a reply) 23 with the Court and serving it on Respondent on or before November 4, 2024. 24 3. Respondent may, on or before October 4, 2024, file a motion to dismiss on procedural 25 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 26 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the 27 Court and serve on Respondent an opposition or statement of non-opposition on or before 28 November 4, 2024, and Respondent shall file with the Court and serve on Petitioner a reply on or 2 1 2 before November 18, 2024. 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court 3 informed of any change of address by filing a separate paper captioned “Notice of Change of 4 Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so may 5 result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 6 Procedure 41(b). 7 8 IT IS SO ORDERED. Dated: July 8, 2024 9 10 JACQUELINE SCOTT CORLEY United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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