Lunsford v. Hornbeak

Filing 15

ORDER FOR RESPONDENT TO SHOW CAUSE. Habeas Answer due by 1/7/2013. Signed by Judge Phyllis J. Hamilton on 11/6/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCELLA LUNSFORD,
Petitioner,

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vs.

ORDER FOR RESPONDENT
TO SHOW CAUSE

TINA HORNBEAK, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 08-5038 PJH (PR)

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This is a habeas case filed pro se by a state prisoner. Because petitioner Lunsford

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said in the petition that she pursued her direct appeal only to the California Court of Appeal,

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and did not list any other proceedings, she was ordered to show cause why the petition

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should not be dismissed as unexhausted.

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EXHAUSTION
In response to the order to show cause petitioner has filed documents showing that

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she unsuccessfully petitioned the California Supreme Court for review, and that a state

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habeas petition also was denied by that court. In a subsequent letter she has provided

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copies of the petition for review and her state habeas petition in the California Supreme

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Court. Petitioner has adequately pleaded exhaustion. The order to show cause is

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discharged.

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SCREENING
This court may entertain a petition for writ of habeas corpus "in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject

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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,
1108 (9th Cir. 1996) (Schroeder, J., concurring).

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For the Northern District of California

United States District Court

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Petitioner’s claims are raised by incorporation of her petition for review. The issues

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therefore are that (1) her due process rights were violated by the trial court’s failure to

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instruct on the required mens rea for an aider and abettor; (2) her due process rights were

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violated when the trial court’s instructions on theories of first degree murder were

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erroneous; (3) her due process rights were violated by the trial court’s failure to correctly

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instruct on conspiracy; (4) her due process rights were violated by the trial court’s failure to

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instruct on withdrawal from the conspiracy and withdrawal from aiding and abetting; (5) the

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prosecutor committed misconduct by interfering with petitioner’s right to call a witness; (6)

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the prosecutor committed misconduct by claiming that a witness was dishonest by

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contending that two different men were the father of her child; and (7) the prosecutor

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committed misconduct by arguing that a witness could not read. These claims are

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sufficient to require a response.

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Lunsford has pending another habeas case challenging the same conviction, C 10-

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0136 PJH (PR), Lunsford v. Henry. In that case the court granted respondent’s motion to

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dismiss the petition as mixed and granted petitioner’s request for a stay and abeyance to

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allow her to exhaust. When that case is reopened the parties may wish to consider moving

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to consolidate it with this case.

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CONCLUSION

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1. The clerk shall serve by regular mail a copy of this order and the petition and all

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attachments thereto on respondent and his attorney, the Attorney General of the State of

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California. The clerk also shall serve a copy of this order on petitioner.

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2. Respondent shall file with the court and serve on petitioner, within sixty days of

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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

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granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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For the Northern District of California

United States District Court

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to a determination of the issues presented by the petition.
If petitioner wishes to respond to the answer, she shall do so by filing a traverse with
the court and serving it on respondent within thirty days of his receipt of the answer.
3. 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

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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the

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date this order is entered. If a motion is filed, petitioner shall file with the court and serve

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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of

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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply

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within fourteen days 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

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must keep the court informed of any change of address and must comply with the court's

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.

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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: November 6, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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