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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 RENIE J. ARIAS, Petitioner, 8 vs. 9 ORDER LIFTING STAY, REOPENING CASE, AND FOR RESPONDENT TO SHOW CAUSE TIM VIRGA, Respondent. 11 For the Northern District of California United States District Court 10 No. C 13-3217 PJH (PR) / 12 Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 13 2254. This case was stayed as petitioner exhausted a further claim but the California 14 Supreme Court has denied the claim and petitioner has filed a motion to lift the stay. 15 BACKGROUND 16 A jury convicted petitioner of first degree murder and first degree robbery. He was 17 sentenced to twenty-five years to life in prison. 18 DISCUSSION 19 A. Standard of Review 20 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 21 custody pursuant to the judgment of a State court only on the ground that he is in custody 22 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 23 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 24 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 25 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 26 pursuant to a judgment of a state court must “specify all the grounds for relief available to 27 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 28 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 1 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 2 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 3 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject 4 to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 5 1108 (9th Cir. 1996) (Schroeder, J., concurring). 6 B. Legal Claims 7 As grounds for federal habeas relief, petitioner asserts: (1) the trial court abused its 8 discretion when it denied his request for advisory counsel as he was representing himself; 9 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. 11 For the Northern District of California United States District Court 10 12 13 14 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 15 petition (Docket No. 4) and all attachments thereto on respondent and respondent's 16 attorney, the Attorney General of the State of California. The clerk also shall serve a copy 17 of this order on petitioner. 18 3. Respondent shall file with the court and serve on petitioner, within sixty days of 19 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 20 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 21 granted. Respondent shall file with the answer and serve on petitioner a copy of all 22 portions of the state trial record that have been transcribed previously and that are relevant 23 to a determination of the issues presented by the petition. 24 25 26 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 27 28 1 A third claim was previously dismissed as it failed to state a federal habeas claim. 2 1 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 2 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the 3 date this order is entered. If a motion is filed, petitioner shall file with the court and serve 4 on respondent an opposition or statement of non-opposition within twenty-eight (28) days of 5 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 6 within fourteen days of receipt of any opposition. 7 5. Petitioner is reminded that all communications with the court must be served on 8 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 9 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 11 For the Northern District of California United States District Court 10 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 12 Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 13 14 IT IS SO ORDERED. Dated: July 3, 2014. PHYLLIS J. HAMILTON United States District Judge 15 16 17 G:\PRO-SE\PJH\HC.13\Arias3217.osc.wpd 18 19 20 21 22 23 24 25 26 27 28 3

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