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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ZACHARY TIBRE ROBEY,
Petitioner,

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vs.

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ORDER LIFTING STAY, REOPENING
CASE AND FOR RESPONDENT TO
SHOW CAUSE

BRENDA CASH, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 11-2054 PJH (PR)

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Petitioner, a California prisoner has filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner was assisted in preparing the petition by attorney

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Randi Covin. This case was stayed so petitioner could exhaust further claims, which have

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now been exhausted in a petition to the California Supreme Court and petitioner has filed

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an amended petition. Docket No. 8.

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BACKGROUND

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Petitioner was found guilty at trial of two counts of first degree robbery, one count of

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dissuading a witness, one count of extortion and one count of possession of

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methamphetamine. He was sentenced to an aggregate term of twenty-five years in prison.

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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 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,

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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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B.

Legal Claims
As grounds for federal habeas relief, petitioner asserts: (1) ineffective assistance of

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trial counsel for failure to object to prosecutorial misconduct; (2) insufficient evidence to

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support the dissuading a witness conviction; (3) insufficient evidence to support the firearm

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enhancement; (4) ineffective assistance of appellate counsel regarding the admission of

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hearsay evidence; (5) ineffective assistance of appellate counsel regarding a jury

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instruction for extortion; and (6) ineffective assistance of appellate counsel regarding

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sentencing. Liberally construed, petitioner’s claims are sufficient to require a response.

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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

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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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3. 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.
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

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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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For the Northern District of California

United States District Court

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within fourteen days of receipt of any opposition.
5. 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: April 9, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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