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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 MARCELLA LUNSFORD, Petitioner, 8 9 vs. ORDER FOR RESPONDENT TO SHOW CAUSE TINA HORNBEAK, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 08-5038 PJH (PR) / 12 13 This is a habeas case filed pro se by a state prisoner. Because petitioner Lunsford 14 said in the petition that she pursued her direct appeal only to the California Court of Appeal, 15 and did not list any other proceedings, she was ordered to show cause why the petition 16 should not be dismissed as unexhausted. 17 18 EXHAUSTION In response to the order to show cause petitioner has filed documents showing that 19 she unsuccessfully petitioned the California Supreme Court for review, and that a state 20 habeas petition also was denied by that court. In a subsequent letter she has provided 21 copies of the petition for review and her state habeas petition in the California Supreme 22 Court. Petitioner has adequately pleaded exhaustion. The order to show cause is 23 discharged. 24 25 SCREENING This court may entertain a petition for writ of habeas corpus "in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 28 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 1 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 2 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 3 pursuant to a judgment of a state court must “specify all the grounds for relief available to 4 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 5 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 6 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 7 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 8 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject 9 to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring). 11 For the Northern District of California United States District Court 10 Petitioner’s claims are raised by incorporation of her petition for review. The issues 12 therefore are that (1) her due process rights were violated by the trial court’s failure to 13 instruct on the required mens rea for an aider and abettor; (2) her due process rights were 14 violated when the trial court’s instructions on theories of first degree murder were 15 erroneous; (3) her due process rights were violated by the trial court’s failure to correctly 16 instruct on conspiracy; (4) her due process rights were violated by the trial court’s failure to 17 instruct on withdrawal from the conspiracy and withdrawal from aiding and abetting; (5) the 18 prosecutor committed misconduct by interfering with petitioner’s right to call a witness; (6) 19 the prosecutor committed misconduct by claiming that a witness was dishonest by 20 contending that two different men were the father of her child; and (7) the prosecutor 21 committed misconduct by arguing that a witness could not read. These claims are 22 sufficient to require a response. 23 Lunsford has pending another habeas case challenging the same conviction, C 10- 24 0136 PJH (PR), Lunsford v. Henry. In that case the court granted respondent’s motion to 25 dismiss the petition as mixed and granted petitioner’s request for a stay and abeyance to 26 allow her to exhaust. When that case is reopened the parties may wish to consider moving 27 to consolidate it with this case. 28 /// 2 1 CONCLUSION 2 1. The clerk shall serve by regular mail a copy of this order and the petition and all 3 attachments thereto on respondent and his attorney, the Attorney General of the State of 4 California. The clerk also shall serve a copy of this order on petitioner. 5 2. Respondent shall file with the court and serve on petitioner, within sixty days of 6 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 7 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 8 granted. Respondent shall file with the answer and serve on petitioner a copy of all 9 portions of the state trial record that have been transcribed previously and that are relevant 11 For the Northern District of California United States District Court 10 12 13 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 14 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 15 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the 16 date this order is entered. If a motion is filed, petitioner shall file with the court and serve 17 on respondent an opposition or statement of non-opposition within twenty-eight (28) days of 18 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 19 within fourteen days of receipt of any opposition. 20 4. Petitioner is reminded that all communications with the court must be served on 21 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 22 must keep the court informed of any change of address and must comply with the court's 23 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 24 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 25 Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 26 27 IT IS SO ORDERED. Dated: November 6, 2012. PHYLLIS J. HAMILTON United States District Judge 28 G:\PRO-SE\PJH\HC.08\LUNSFORD5038.osc-R.wpd 3

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