Robey v. Cash

Filing 11

ORDER LIFTING STAY, REOPENING CASE AND FOR RESPONDENT TO SHOW CAUSE re 7 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus filed by Zachary Tibre Robey. Signed by Judge Phyllis J. Hamilton on 4/9/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 4/9/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 ZACHARY TIBRE ROBEY, Petitioner, 8 vs. 9 ORDER LIFTING STAY, REOPENING CASE AND FOR RESPONDENT TO SHOW CAUSE BRENDA CASH, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 11-2054 PJH (PR) / 12 13 Petitioner, a California prisoner has filed a petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. Petitioner was assisted in preparing the petition by attorney 15 Randi Covin. This case was stayed so petitioner could exhaust further claims, which have 16 now been exhausted in a petition to the California Supreme Court and petitioner has filed 17 an amended petition. Docket No. 8. 18 BACKGROUND 19 Petitioner was found guilty at trial of two counts of first degree robbery, one count of 20 dissuading a witness, one count of extortion and one count of possession of 21 methamphetamine. He was sentenced to an aggregate term of twenty-five years in prison. 22 DISCUSSION 23 24 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody 26 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 27 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 28 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 1 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 2 pursuant to a judgment of a state court must “specify all the grounds for relief available to 3 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 5 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 6 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 7 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject 8 to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 9 1108 (9th Cir. 1996) (Schroeder, J., concurring). 11 For the Northern District of California United States District Court 10 B. Legal Claims As grounds for federal habeas relief, petitioner asserts: (1) ineffective assistance of 12 trial counsel for failure to object to prosecutorial misconduct; (2) insufficient evidence to 13 support the dissuading a witness conviction; (3) insufficient evidence to support the firearm 14 enhancement; (4) ineffective assistance of appellate counsel regarding the admission of 15 hearsay evidence; (5) ineffective assistance of appellate counsel regarding a jury 16 instruction for extortion; and (6) ineffective assistance of appellate counsel regarding 17 sentencing. Liberally construed, petitioner’s claims are sufficient to require a response. 18 19 20 21 CONCLUSION 1. The motion to amend (Docket No. 7) is GRANTED, the stay is lifted and the Clerk shall REOPEN the case. 2. The clerk shall serve by regular mail a copy of this order and the petition and all 22 attachments thereto on respondent and respondent's attorney, the Attorney General of the 23 State of California. The clerk also shall serve a copy of this order on petitioner. 24 3. Respondent shall file with the court and serve on petitioner, within sixty days of 25 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 26 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 27 granted. Respondent shall file with the answer and serve on petitioner a copy of all 28 portions of the state trial record that have been transcribed previously and that are relevant 2 1 2 3 4 to a determination of the issues presented by the petition. 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. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 5 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 6 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the 7 date this order is entered. If a motion is filed, petitioner shall file with the court and serve 8 on respondent an opposition or statement of non-opposition within twenty-eight (28) days of 9 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 11 For the Northern District of California United States District Court 10 within fourteen days of receipt of any opposition. 5. Petitioner is reminded that all communications with the court must be served on 12 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 13 must keep the court informed of any change of address and must comply with the court's 14 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 15 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 16 Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 17 18 IT IS SO ORDERED. Dated: April 9, 2013. PHYLLIS J. HAMILTON United States District Judge 19 20 21 G:\PRO-SE\PJH\HC.11\Robey2054.osc.wpd 22 23 24 25 26 27 28 3

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