Silva v. Neotti

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 4/19/11. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 4/19/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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GILBERTO SILVA,
Petitioner,

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vs.

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ORDER TO SHOW CAUSE

GEORGE NEOTTI, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 09-5656 PJH (PR)

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This is a habeas case filed pro se by a state prisoner. The petition was prepared by

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an attorney acting pro bono. In the “Grounds for Relief” section of the original form petition,

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counsel wrote: “See attachment: ‘Claim One Facts and Argument.’” There was, however,

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no attachment. The petition was dismissed with leave to amend to provide the attachment.

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Petitioner then refiled the same petition, now with the word “amended” handwritten in the

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caption, but still did not provide the attachment. The court again dismissed with leave to

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amend. Petitioner now has provided the attachment.

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BACKGROUND

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A jury convicted petitioner of second degree robbery. With enhancements, he was

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sentenced to prison for nineteen years. Petitioner unsuccessfully appealed his conviction

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to the California Court of Appeal and the Supreme Court of California denied review.
DISCUSSION

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A.

Standard of Review
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

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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 which are

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available to the petitioner ... and shall set forth in summary form the facts supporting each

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of the grounds thus specified.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C.

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foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts

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that point to a ‘real possibility of constitutional error.’” Rule 4 Advisory Committee Notes

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(quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970). “Habeas petitions which
appear on their face to be legally insufficient are subject to summary dismissal.” Calderon

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For the Northern District of California

United States District Court

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v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J.,

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concurring).

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B.

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Legal Claims
As grounds for federal habeas relief, petitioner asserts that his trial counsel was

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ineffective in failing to challenge allegations that petitioner had suffered out-of-state prior

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convictions, and in counseling plaintiff to admit them, when the out-of-state priors did not

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meet California’s standards for a “strike.” This claim is sufficient to require a response.

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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 respondent's attorney, the Attorney General of the

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State of 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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to a determination of the issues presented by the petition.

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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 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, petitioner shall file with the court

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and serve on respondent an opposition or statement of non-opposition within thirty 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 fifteen days of receipt of any opposition.

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4. Petitioner is reminded that all communications with the court must be served on
respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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For the Northern District of California

United States District Court

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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: April 19, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.09\SILVA5656.OSC.wpd

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