Arias v. Virga

Filing 12

ORDER LIFTING STAY, REOPENING CASE, AND FOR RESPONDENT TO SHOW CAUSE by Judge Phyllis J. Hamilton granting 11 Motion (Attachments: # 1 Certificate/Proof of Service) (nahS, COURT STAFF) (Filed on 7/3/2014)

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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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RENIE J. ARIAS,
Petitioner,

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vs.

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

TIM VIRGA,
Respondent.

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For the Northern District of California

United States District Court

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No. C 13-3217 PJH (PR)

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Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
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2254. This case was stayed as petitioner exhausted a further claim but the California
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Supreme Court has denied the claim and petitioner has filed a motion to lift the stay.
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BACKGROUND
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A jury convicted petitioner of first degree murder and first degree robbery. He was
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sentenced to twenty-five years to life in prison.
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DISCUSSION
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A.

Standard of Review

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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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B.

Legal Claims

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As grounds for federal habeas relief, petitioner asserts: (1) the trial court abused its

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discretion when it denied his request for advisory counsel as he was representing himself;

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and (2) the trial court erred when it denied petitioner’s motion to continue.1 Liberally
construed, petitioner’s claims are sufficient to require a response.

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For the Northern District of California

United States District Court

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CONCLUSION
1. The motion to lift the stay (Docket No. 11) is GRANTED and this case is
REOPENED.
2. The clerk shall serve by regular mail a copy of this order and the amended

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petition (Docket No. 4) and all attachments thereto on respondent and respondent's

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attorney, the Attorney General of the State of California. The clerk also shall serve a copy

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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.

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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.
4. Respondent may file a motion to dismiss on procedural grounds in lieu of an

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A third claim was previously dismissed as it failed to state a federal habeas claim.
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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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within fourteen days of receipt of any opposition.

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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
orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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For the Northern District of California

United States District Court

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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:

July 3, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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