Harris v. Lopez

Filing 11

ORDER TO SHOW CAUSE. Signed by Judge Hamilton on 6/14/11. (pjhlc3, COURT STAFF) (Filed on 6/14/2011)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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CARLOS R. HARRIS,

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Petitioner,

No. C 11-0533 PJH

v.
ORDER TO SHOW CAUSE

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RAUL LOPEZ, Warden,
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Respondent.
_______________________________/
On February 3, 2011, petitioner Carlos Harris (“Harris”), a state prisoner, filed a pro

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se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Subsequently, on

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February 16, 2011, Stanley Friedman, filed a notice that he had been retained as counsel

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by Harris. On March 2, 2011, the court’s order noted that Harris appeared to have filed his

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petition pro se and to have subsequently retained counsel. Unfortunately, the

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memorandum of points and authorities (“MPA”) Harris attached to his pro se petition

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framed his claims as errors of state law only. Accordingly, the court further noted that as

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framed by the MPA, Harris’ claims were not cognizable under 28 U.S.C. § 2254. So that

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the court could properly assess the claims raised by Harris, the court ordered Harris, with

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the assistance of his newly retained counsel, to revise and re-submit his MPA such that his

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MPA clarified what federal claims he was raising. With the assistance of Mr. Friedman, on

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May 16, 2011, Harris supplemented the original petition filed with this court, and clarified

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the nature of his claims.

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BACKGROUND

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A jury in the Santa Clara County Superior Court convicted Harris of attempted

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murder, assault with a deadly weapon, and robbery in concert, and found true the

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sentencing enhancement that Harris was armed with a deadly weapon. Harris waived trial

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and admitted one “strike” and one prior serious felony that were alleged. The court

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sentenced Harris to eighteen years to life in prison on the attempted murder conviction plus

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a consecutive sentence of one year for the firearm enhancement; stayed sentence on the

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assault count; and sentenced Harris to four years on the robbery count plus an additional
four months for the firearm enhancement. The court imposed an additional five-year

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For the Northern District of California

United States District Court

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consecutive term for the prior serious felony, resulting in an aggregate sentence of twenty-

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eight years, four months to life in prison.
Harris appealed to the California Court of Appeal, which, on September 14, 2007,

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reversed and remanded to the trial court for resentencing. On June 20, 2008, the trial court

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imposed the identical sentence that it imposed initially. The California Supreme Court

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denied review on February 18, 2010.
DISCUSSION

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A.

Legal Standard
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). It shall "award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto." 28 U.S.C. § 2243.

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B.

Petitioner’s Legal Claims

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Harris raises six claims for federal habeas relief, including:

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(1)

his Sixth Amendment rights were violated because one of the jurors was

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biased;

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(2)

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his Sixth Amendment rights were violated when the trial court denied him
counsel of his choice;

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(3)

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his Due Process rights were violated when the trial court told the jury that he
and other codefendants were accomplices as a matter of law;

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(4)

the trial court abused its discretion when it sentenced him;

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(5)

the trial court abused its discretion in ruling on his Romero claim;

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(6)

his Sixth Amendment right to effective assistance of counsel was violated
when his counsel failed to timely file a Romero motion.

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Liberally construed, claims one, two, three, and six appear colorable under 28

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For the Northern District of California

United States District Court

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U.S.C. § 2254, and merit an answer from respondent. Claims four and five, however,

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present issues of state law that are not cognizable in this federal habeas proceeding.

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Accordingly, claims four and five are DISMISSED.
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

Petitioner is ordered to pay the filing fee required in habeas cases.

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2.

The clerk shall serve by certified mail a copy of this order and the petition and

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all attachments thereto upon respondents. The clerk shall also serve a copy of this order

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on petitioner.
3.

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Respondents shall file with the court and serve on petitioner, within 60 days of

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the date 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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issued. Respondent shall file with the answer and serve on petitioner a copy of all portions

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of the administrative record that are relevant to a determination of the issues presented by

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the petition.

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4.

If the petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his receipt of the

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answer.

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IT IS SO ORDERED.

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Dated: June 14, 2011

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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