Martin v. Barnes

Filing 9

ORDER FOR RESPONDENT TO SHOW CAUSE. Habeas Answer due by 4/8/2013.. Signed by Judge Phyllis J. Hamilton on 2/5/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/5/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 REGINALD E. MARTIN, Petitioner, 8 vs. 9 ORDER FOR RESPONDENT TO SHOW CAUSE R. BARNES, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 12-01881 PJH (PR) / 12 13 Petitioner, a California prisoner currently incarcerated at the California Correctional 14 Center in Susanville, has filed a pro se petition for a writ of habeas corpus pursuant to 28 15 U.S.C. § 2254. 16 Petitioner was convicted in Alameda County, which is in this district, so venue is 17 proper here. See 28 U.S.C. § 2241(d). Petitioner’s original and amended petition were 18 dismissed with leave to amend and petitioner has filed a second amended petition. 19 BACKGROUND 20 21 A jury convicted petitioner of first degree murder. He was sentenced to fifty years to life in prison. Petitioner appealed. The California Court of Appeal affirmed and the Supreme Court 22 23 of California denied review. Petitioner also filed an unsuccessful state habeas petition in 24 the California Supreme Court. DISCUSSION 25 26 27 28 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody 1 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 3 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 4 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 5 pursuant to a judgment of a state court must “specify all the grounds for relief available to 6 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 7 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 8 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 9 Rule 4 Advisory Committee Notes (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 11 For the Northern District of California United States District Court 10 summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 12 (9th Cir. 1996) (Schroeder, J., concurring). 13 B. 14 Legal Claims The prior amended petition raised ten claims and the court found certain claims 15 sufficient to proceed, certain claims dismissed with leave to amend and other claims 16 dismissed without leave to amend. Petitioner was repeatedly informed that he must include 17 in any amended petition all the claims he wished to proceed with, as an amended petition 18 supercedes prior petitions. The court will address the claims of the second amended 19 petition as they are numbered in that petition. 20 As grounds for federal habeas relief, petitioner asserts: (2) ineffective assistance of 21 counsel; (3) the jury venire did not represent a fair cross-section of the community; (7) 22 prosecution failed to preserve evidence; (8) admission of hearsay evidence; (9) improper 23 jury instructions 24 Claim two states that counsel was ineffective, but provides very little support. 25 Petitioner states counsel should have introduced expert testimony or found witnesses, but 26 petitioner does not identify any witnesses or describe what expert testimony was needed. 27 Petitioner also states that he was not allowed to review police reports that trial counsel 28 possessed, but provides no allegations regarding the importance of the reports. Finally, 2 1 petitioner alleges his counsel failed to disclose exculpatory evidence to petitioner, regarding 2 a gun brought forth from a witness that was same caliber as the murder weapon but never 3 tested. Petitioner was repeatedly informed he needed to provide more support for this 4 claim, but has failed to do so. That witnesses should have been found or another gun of 5 the same caliber existed, fails to demonstrate ineffective assistance of counsel as petitioner 6 has only provided conclusory allegations without any support. See Jones v. Gomez, 66 7 F.3d 199, 204-05 (9th Cir. 1995) (“‘[c]onclusory allegations which are not supported by a 8 statement of specific facts do not warrant habeas relief’”) (quoting James v. Borg, 24 F.3d 9 20, 26 (9th Cir. 1994)). This claim is therefore dismissed. 11 For the Northern District of California United States District Court 10 12 Claim three regarding the racial makeup of the jury is sufficient to proceed as it was presented on direct appeal and was sufficiently described on appeal. Claim seven states that the prosecution failed to preserve evidence in that a gun 13 recovered from another individual for another crime was destroyed before it could be 14 examined. Liberally construed, this claim is sufficient to proceed. 15 16 17 18 19 20 Claim eight states that tape recorded testimony from Rashonda Martin and Paul Scott was improperly admitted. This claim is sufficient to proceed. Claim nine states that a jury instruction involving petitioner leaving the state was improper and diluted the standard of proof. This claim is sufficient to proceed. In summary, claim two is dismissed and this action proceed on claims three, seven, eight and nine of the second amended petition. Docket No. 8. 21 22 23 24 CONCLUSION 1. Claims two is DISMISSED. Claims three, seven, eight and nine are sufficient to proceed. 2. The clerk shall serve by regular mail a copy of this order and the petition and all 25 attachments thereto on respondent and respondent's attorney, the Attorney General of the 26 State of California. The clerk also shall serve a copy of this order on petitioner. 27 28 3. Respondent shall file with the court and serve on petitioner, within sixty days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 3 1 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 2 granted. Respondent shall file with the answer and serve on petitioner a copy of all 3 portions of the state trial record that have been transcribed previously and that are relevant 4 to a determination of the issues presented by the petition. 5 6 7 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 8 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 9 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If a motion is filed, petitioner shall file with the court and serve 11 For the Northern District of California United States District Court 10 on respondent an opposition or statement of non-opposition within twenty-eight (28) days of 12 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 13 within fourteen days of receipt of any opposition. 14 5. Petitioner is reminded that all communications with the court must be served on 15 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 16 must keep the court informed of any change of address and must comply with the court's 17 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 18 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 19 Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 20 21 IT IS SO ORDERED. Dated: February 5, 2013. PHYLLIS J. HAMILTON United States District Judge 22 23 G:\PRO-SE\PJH\HC.12\Martin1881.osc.wpd 24 25 26 27 28 4

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