Ascencio v. Spearmen

Filing 7

ORDER FOR RESPONDENT TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 12/16/2013. Signed by Judge Phyllis J. Hamilton on 10/15/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 10/15/2013)

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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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SANTOS F. ASCENCIO,
Petitioner,

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vs.

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ORDER FOR RESPONDENT
TO SHOW CAUSE

M.E. SPEARMEN,
Respondent.

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For the Northern District of California

United States District Court

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No. C 13-3433 PJH (PR)

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Petitioner, a state prisoner has filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Alameda County, which is in this
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district, so venue is proper here. See 28 U.S.C. § 2241(d). The amended petition was
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dismissed with leave to amend and petitioner has filed a second amended petition.
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BACKGROUND
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A jury convicted petitioner of two counts of forcible rape in concert. He was
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sentenced to fourteen years in prison. Petitioner states that he appealed to the court of
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appeals and state supreme court, but those appeals were denied. He states no other
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appeals or habeas petitions were filed.
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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.

As grounds for federal habeas relief, petitioner asserts: (1) the victim’s abortion

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For the Northern District of California

United States District Court

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Legal Claims

records were improperly admitted in violation of the confrontation clause and Crawford v.

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Washington, 541 U.S. 36 (2004); (2) the judge erred in not instructing the jury on lesser

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included offenses; and (3) with no direct testimony as to his culpability, he is actually

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innocent of the rape and assault.

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Before he may challenge either the fact or length of his confinement in a habeas

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petition in this court, petitioner must present to the California Supreme Court any claims he

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wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every

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claim raised in federal habeas petition must be exhausted). The general rule is that a

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federal district court must dismiss a federal habeas petition containing any claim as to

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which state remedies have not been exhausted. Id. When faced with a post-AEDPA mixed

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petition, the district court must sua sponte inform the habeas petitioner of the mixed petition

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deficiency and provide him an opportunity to amend the mixed petition by striking

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unexhausted claims as an alternative to suffering dismissal before the court may dismiss

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the petition. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v.

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Weber, 544 U.S. 269, 277 (2005)) (court's erroneous dismissal of mixed petition entitled

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petitioner to equitable tolling of one-year AEDPA statute of limitations from the date the first

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habeas petition was dismissed until the date the second habeas petition was filed).

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The first two claims were properly exhausted and liberally construed are sufficient to

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require a response. However, the original and amended petitions were dismissed with

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leave to amend as they contained both exhausted and unexhausted claims. Petitioner was

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informed that the third claim regarding actual innocence was not presented to the state

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courts and could not be considered until it was exhausted. Petitioner was repeatedly

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advised to only present exhausted claims or file a motion to stay.

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In this second amended petition, petitioner has again failed to follow court

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instructions. Petitioner has again included the third unexhausted claim but has not sought

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a motion to stay. As petitioner was twice informed of the deficiencies of the petition, this
claim will be stricken and the petition will continue on the first two claims. Moreover,

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For the Northern District of California

United States District Court

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petitioner provides no support or explanation for this unexhausted claim and does not

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allege there is new evidence that demonstrates his innocence.1

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CONCLUSION
1. Claim three from the second amended petition is stricken and the petition will
continue on the first two claims.
2. The clerk shall serve by regular mail a copy of this order and the second

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amended petition and all attachments thereto on respondent and respondent's attorney, the

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Attorney General of the State of California. The clerk also shall serve a copy of this order

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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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The United States Supreme Court has never held that a freestanding claim of actual
innocence is cognizable on federal habeas review. Herrera v. Collins, 506 U.S. 390, 400
(1993) (“Claims of actual innocence based on newly discovered evidence have never been
held to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.”); see also House v. Bell, 547 U.S. 518,
545–55 (2006) (declining “to answer the question left open in Herrera” of whether “freestanding
innocence claims are possible”).
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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.

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4. 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, 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
within fourteen days of receipt of any opposition.

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For the Northern District of California

United States District Court

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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

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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.
Dated:

October 15, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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