Woods v. Virga

Filing 10

ORDER LIFTING STAY AND FOR RESPONDENT TO SHOW CAUSE. Show Cause Response due by 4/21/2014. Signed by Judge Phyllis J. Hamilton on 2/18/14. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 2/18/2014)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL WOODS, Petitioner, 8 vs. 9 ORDER LIFTING STAY AND FOR RESPONDENT TO SHOW CAUSE TIM VIRGA, Respondent. 11 For the Northern District of California United States District Court 10 No. C 13-0009 PJH (PR) / 12 13 Petitioner, a California prisoner filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Alameda County, which is in this 15 district, so venue is proper here. See 28 U.S.C. § 2241(d). This case was stayed so 16 petitioner could exhaust further claims and he has filed an amended petition and a motion 17 to lift the stay. 18 BACKGROUND 19 A jury convicted petitioner of first degree murder, second degree murder and 20 possession of firearm by a felon. He was sentenced to 190 years to life in prison. 21 Petitioner’s appeals to the California Court of Appeals and California Supreme Court were 22 denied. His habeas petition to the California Supreme Court to exhaust additional claims 23 was also denied. DISCUSSION 24 25 26 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody 28 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 1 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 2 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 3 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 4 pursuant to a judgment of a state court must “specify all the grounds for relief available to 5 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 6 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 7 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 8 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 9 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 11 For the Northern District of California United States District Court 10 1108 (9th Cir. 1996) (Schroeder, J., concurring). 12 B. 13 Legal Claims As grounds for federal habeas relief, petitioner asserts: (1) the trial court erred by 14 denying his motion to sever the charges of the two murders in violation of due process; (2) 15 ineffective assistance of counsel for failing to properly schedule an expert and the trial court 16 erred in denying a continuance; (3) erroneous jury instruction; (4) ineffective assistance of 17 appellate counsel for failing to raise a Brady claim; and (5) ineffective assistance of 18 appellate counsel for failing to raise a claim that extra security during trial violated due 19 process. These claims are sufficient to require a response. 20 21 22 23 CONCLUSION 1. The motion to lift the stay (Docket No. 9) is GRANTED and this case is REOPENED. 2. The clerk shall serve by regular mail a copy of this order and the amended 24 petition (Docket No. 7) and all attachments thereto on respondent and respondent's 25 attorney, the Attorney General of the State of California. The clerk also shall serve a copy 26 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 2 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 18, 2014. PHYLLIS J. HAMILTON United States District Judge 22 23 G:\PRO-SE\PJH\HC.13\Woods0009.osc.wpd 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?