Jaffe v. Kramer

Filing 79

ORDER TO SHOW CAUSE. Answer due by 1/7/2014. Response/opposition due by 2/6/2014. Signed by Judge Phyllis J. Hamilton on 11/8/2013. (pjhlc3, COURT STAFF) (Filed on 11/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVEN JAFFE,
No. C 05-4439 PJH

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Petitioner,
ORDER TO SHOW CAUSE

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vs.
EDMUND G. BROWN, Jr., et al.,
Respondents.
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For the Northern District of California

United States District Court

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Petitioner Steven Jaffe has filed a first amended petition pursuant to 28 U.S.C.

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§ 2254. Pursuant to Federal Rule of Civil Procedure 15, the court grants leave to file the

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amended petition. The stay entered October 25, 2012 is hereby lifted.

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On remand, the court dismissed the Confrontation Clause claim identified by the

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Ninth Circuit, granted petitioner’s motion to stay the petition pending state court

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proceedings to attempt to exhaust the Confrontation Clause claim, and ordered petitioner to

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return to this court to amend the petition within 30 days after the state courts had

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completed their review. Doc. no. 73. In a status report filed May 10, 2013, petitioner

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informed the court that he filed a motion to recall remittitur in the court of appeal which was

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fully briefed as of March 13, 2013. Petitioner did not provide a further report on the status

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of the state court proceedings until he filed the amended habeas petition on October 25,

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2013, in which he stated that the court of appeal summarily denied the motion to recall

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remittitur on June 12, 2013. Petitioner further stated that he filed a petition for review on

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the ground that his conviction violated the Confrontation Clause, which the California

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Supreme Court denied on October 2, 2013.

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In the first amended petition, petitioner asserts that he has exhausted the

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Confrontation Clause claim and amends the petition to include that claim. As noted in the

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order dismissing the unexhausted claim and staying the petition, the court reserved the

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question whether the Confrontation Clause claim was fairly presented in state court for

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exhaustion purposes. Doc. no. 73 at 8. In particular, it is not clear whether the court of

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appeal’s summary denial of the motion to recall remittitur amounts to a ruling on the merits,

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akin to a summary denial of a petition for review by the state supreme court. Although

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non-exhaustion is an affirmative defense, petitioner bears the burden of proof that state

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judicial remedies were properly exhausted. See Batchelor v. Cupp, 693 F.2d 859, 863 (9th

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Cir. 1982) (“the exhaustion requirement of § 2254 will not be deemed satisfied until the

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petitioner demonstrates that his claim has been presented to the state's highest court, or

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that no state remedy is available and that the nonavailability was not caused by a
deliberate bypass.”). Nevertheless, as the Ninth Circuit has deemed this claim to appear

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For the Northern District of California

United States District Court

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colorable under 28 U.S.C. § 2254, this claim merits an answer or other response from

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respondents. Given the procedural history and posture of this case, the court anticipates

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that respondent will file a motion to dismiss.

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For the foregoing reasons, IT IS HEREBY ORDERED that, within 60 days of the

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date of this order, respondents shall file an answer, or otherwise respond to the first

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amended petition, showing cause why a writ of habeas corpus should not be issued on the

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Confrontation Clause claim. Respondents shall file with the answer and serve on petitioner

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a copy of all portions of the administrative record that are relevant to a determination of the

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issues presented by the petition. Petitioner shall respond to the answer, or any motion to

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dismiss, within 30 days of the filing of the answer or motion to dismiss. If a motion is filed,

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respondents shall file a reply within 14 days of the filing of any opposition. No hearing will

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be set on the motion unless deemed necessary by the court.

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IT IS SO ORDERED.
Dated: November 8, 2013
PHYLLIS J. HAMILTON
United States District Judge

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