Aguilar v. Cate

Filing 6

ORDER TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 11/10/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/10/2011)

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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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ALEXIS AGUILAR,
Petitioner,

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vs.

ORDER TO SHOW CAUSE

MATHEW CATE, Secretary of the
CDCR,

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For the Northern District of California

United States District Court

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No. C 11-4267 PJH (PR)

Respondent.
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Petitioner sent the court a completed page one of the court’s form for habeas

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petitions and a certificate of service. In an effort to protect his rights, the filing was treated

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as an attempt to file a new habeas case and assigned this case number. The next day a

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complete habeas petition arrived and was given case number C 11-4313 JS (PR). When it

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was realized that the cases were duplicative, case number C 11-4313 JS (PR) was

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dismissed without prejudice and the petition from C 11-4313 JS(PR) was filed in this case

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as an amended petition. It is the “amended petition” that is reviewed here.

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Petitioner was convicted in Monterey County, which is in this district, so venue is
proper here. See 28 U.S.C. § 2241(d). He has paid the filing fee.
BACKGROUND
Petitioner’s first trial ended in a mistrial. At his second trial, a jury convicted him of

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first degree murder and found that he personally used a gun to commit the crime. He also

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was convicted of street terrorism, and the court found that he personally used a firearm in

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that offense. He was sentenced to an aggregate prison term of fifty-six years to life.

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Petitioner appealed. The California Court of Appeal affirmed and the Supreme Court
of California denied review. Petitioner also filed a state habeas petition that was denied by

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the court of appeal contemporaneously with its affirmance of his conviction. The California

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Supreme Court denied a petition for review of the habeas denial, with one justice dissenting

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from the denial.

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DISCUSSION
A.

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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
heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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For the Northern District of California

United States District Court

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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). “[H]abeas petitions which

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appear on their face to be legally insufficient are subject to summary dismissal.” Calderon

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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: (1) His Sixth and

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Fourteenth Amendment rights were violated by the exclusion of certain expert testimony;

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and (2) his counsel was ineffective when he did not object to purported prosecutorial

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misconduct in closing argument. These claims are 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 amended

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petition and all attachments thereto on respondent and respondent's attorney, the Attorney
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General of the State of California. The clerk also shall serve a copy of this order on

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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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For the Northern District of California

United States District Court

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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

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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.

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Dated: November 10, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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