Sanchez v. Arnold

Filing 4

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 10/24/2017. Signed by Judge Kandis A. Westmore on 8/25/2017. (kawlc1, COURT STAFF) (Filed on 8/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GENE SANCHEZ, Plaintiff. 8 9 10 United States District Court Northern District of California 11 v. Case No.4:17-cv-01155-KAW ORDER TO SHOW CAUSE Re: Dkt. Nos. 1 & 3 ERIC ARNOLD, Defendant. 12 13 Gene Sanchez, Petitioner, a state prisoner incarcerated at California State Prison Solano, 14 has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) 15 Thereafter, Petitioner filed a signed verification. (Dkt. No. 3.) BACKGROUND 16 17 Petitioner was convicted by a jury in the Superior Court of the State of California in and 18 for the County of Santa Clara. On or about August 19, 2011, he was sentenced to a determinate 19 sentence of 5 years for a prior serious felony allegation, consecutive to an indeterminate term of 20 50 years to life for conspiracy to commit murder with a gang allegation. 21 Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the 22 Supreme Court of California, which, on September 21, 2016, denied review of a petition allegedly 23 raising the same claims raised here. DISCUSSION 24 25 A. Legal Standard 26 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 in 28 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall 1 "award the writ or issue an order directing the respondent to show cause why the writ should not 2 be granted, unless it appears from the application that the applicant or person detained is not 3 entitled thereto." 28 U.S.C. § 2243. 4 Summary dismissal is appropriate only where the allegations in the petition are vague or 5 conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 6 490, 491 (9th Cir. 1990). B. Petitioner’s Legal Claims 7 8 9 Petitioner seeks federal habeas corpus relief by raising the following claims that the state trial court violated petitioner’s right to Confrontation and Due Process under the Sixth and Fourteenth Amendments to the United States Constitution, by reason of prosecution witness 11 United States District Court Northern District of California 10 Jeremy Rosario’s refusal to submit to cross-examination. Liberally construed, the claims appear 12 colorable under 28 U.S.C. § 2254, and merit an answer from respondents. CONCLUSION 13 14 For the foregoing reasons and for good cause shown: 15 1. 16 17 The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto upon respondents. The clerk shall also serve a copy of this order on petitioner. 2. Respondents shall file with the court and serve on petitioner, within 60 days of the 18 date of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 19 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall 20 file with the answer and serve on petitioner a copy of all portions of the administrative record that 21 are relevant to a determination of the issues presented by the petition. 22 23 24 25 26 27 3. If the petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer. IT IS SO ORDERED. Dated: August 25, 2017 ______________________________________ KANDIS A. WESTMORE United States Magistrate Judge 28 2

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