Torres v. Hatton

Filing 28

ORDER LIFTING STAY AND FOR RESPONDENT TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 7/30/18. Case reopened. Habeas Answer due by 9/24/2018. (Certificate of Service Attached). (kcS, COURT STAFF) (Filed on 7/30/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIO TORRES,

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Petitioner,

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ORDER LIFTING STAY AND FOR
RESPONDENT TO SHOW CAUSE

v.

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SHAWN HATTON,

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Respondent.

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United States District Court
Northern District of California

Case No. 17-cv-04332-PJH

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Petitioner, a state prisoner, filed a pro se writ of habeas corpus pursuant to 28

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U.S.C. § 2254. The petition (Docket No. 16) was stayed so petitioner could exhaust

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further claims. Petitioner now seeks to lift the stay.
BACKGROUND

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It appears that after petitioner’s conviction was reversed by the California Court of

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Appeal, petitioner pled guilty to several counts on February 5, 2015. It does not appear

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that he filed a direct appeal of his conviction. Petitioner did file more than twenty state

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habeas petitions and writs of mandate. A few of the petitions were to the California

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Supreme Court and petitioner indicates that his claims are now exhausted.1
DISCUSSION

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “in behalf of a person
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in custody pursuant to the judgment of a State court only on the ground that he is in
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If the claims have not been properly exhausted, respondent may raise the issue in a
motion to dismiss.

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custody 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. § 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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United States District Court
Northern District of California

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1970)).
LEGAL CLAIMS

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As grounds for federal habeas relief, petitioner asserts that: (1) he is actually
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innocent; (2) counsel was ineffective with respect to his plea and failed to provide
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petitioner with certain paperwork; (3) his plea agreement was violated; (4) there was a
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violation of Brady v. Maryland, 373 U.S. 83 (1963); and (5) he received an illegal
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sentence. Liberally construed, the final four claims are sufficient to require a response,
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but the first claim regarding actual innocence is dismissed.
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In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Court assumed without
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deciding that "in a capital case a truly persuasive demonstration of 'actual innocence'
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made after trial would render the execution of a defendant unconstitutional, and warrant
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federal habeas relief if there were no state avenue open to process such a claim."
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Herrera, 506 U.S. at 417. The Court has declined to answer the question left open in
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Herrera and hold that freestanding actual innocence claims (i.e., claims in which the
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petitioner argues that the evidence sufficiently establishes his innocence, irrespective of
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any constitutional error at trial or sentencing) are possible. See House v. Bell, 547 U.S.
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518, 554-55 (2006).
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After Herrera, the Ninth Circuit initially found that there could be no habeas relief

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based solely on a petitioner's actual innocence of the crime in a noncapital case. See

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Coley v. Gonzalez, 55 F.3d 1385, 1387 (9th Cir. 1995). But it has held since that it is “still

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an open question” whether federal habeas relief is available based on a freestanding

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claim of actual innocence. Taylor v. Beard, 811 F.3d 326, 334 (9th Cir. 2016) (en banc)

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(citing McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013)).
CONCLUSION

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1.

The stay in this case is LIFTED and the case is REOPENED. The first

claim is DISMISSED.
2.

The clerk shall serve by regular mail a copy of this order and the petition

United States District Court
Northern District of California

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(Docket No. 16) and all attachments thereto on respondent and respondent’s attorney,

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

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order on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within fifty-six

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(56) days of the issuance of this order, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be granted. Respondent shall file with the answer and serve on petitioner a

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copy of all portions of the state trial record that have been transcribed previously and that

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are relevant 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

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with the court and serving it on respondent within twenty-eight (28) days of his receipt of

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the answer.

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4.

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

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an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

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Governing Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56)

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days from the date this order is entered. If a motion is filed, petitioner shall file with the

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Court and serve on respondent an opposition or statement of non-opposition within

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twenty-eight (28) days of receipt of the motion, and respondent shall file with the court
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and serve on petitioner a reply within fourteen (14) days of receipt o any oppo
of
osition.
5.

Petitioner is reminded that all co
d
ommunicatio with the court mus be
ons
e
st

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rved on res
spondent by mailing a true copy o the document to res
y
of
spondent’s counsel.
ser

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Pe
etitioner must keep the court infor
e
rmed of any change of address a must co
y
f
and
omply with

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the court’s ord
e
ders in a tim
mely fashion. Failure t do so ma result in the dismissal of this
to
ay

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act
tion for failu to prose
ure
ecute pursu
uant to Federal Rule o Civil Proc
of
cedure 41(b See
b).

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Ma
artinez v. Jo
ohnson, 104 F.3d 769, 772 (5th C 1997) (Rule 41(b) applicable in habeas
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Cir.

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cas
ses).

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IT IS SO ORDER
S
RED.
Da
ated: July 30 2018
0,

United States District Court
Northern District of California

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PH
HYLLIS J. H
HAMILTON
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Un
nited States District Ju
s
udge

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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MARIO TOR
M
RRES,

Case No. 1
17-cv-04332
2-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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SH
HAWN HAT
TTON,
.
Defendant.

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.

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That on July 30, 20 I SERVE a true an correct co
n
018,
ED
nd
opy(ies) of th attached, by placing
he
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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ario Torres ID: AR3573
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Ma
Corr. Training Facility
PO Box 705
O
Sol
ledad, CA 93960

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Da
ated: July 30, 2018
,

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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