Leivas v. Runnels

Filing 20

ORDER REOPENING CASE, ORDER TO SHOW CAUSE. Signed by Judge Jeremy Fogel on 4/3/06. (jfsec, COURT STAFF) (Filed on 4/3/2006)

Case 5:02-cv-00508-JF

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1 2 3 4 5 6 7 8 N O T FOR CITATION 9 I N THE UNITED STATES DISTRICT COURT 10 F O R THE NORTHERN DISTRICT OF CALIFORNIA 11 12 J O S E P H RAYMOND LEIVAS, 13 Petitioner, 14 vs. 15 D . L . RUNNELS, Warden, 16 Res pon dent. 17 18 P e t i ti o n e r , a state prisoner, filed a pro se habeas petition pursuant to 28 U.S.C. 19 § 2254. The Court initially dismissed the petition with leave to amend as Petitioner had 20 not exhausted all of his claims. Petitioner filed an amended petition including only his 21 exha usted claim. On April 7, 2004, the Court issued an order to show cause to 22 R e s p o n d e n t as to why the amended petition should not be granted. Respondent filed an 23 a n s w e r to the amended petition on April 27, 2004. On June 21, 2004, Petitioner filed a 24 m o t i o n to stay the amended petition and return to state court to exhaust the remaining 25 claims from his original petition. On January 11, 2005, the Court granted Petitioner's 26 m o ti on to stay the amended petition pending exhaustion of his claims in the state supreme 27 cour t. 28
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**Original filed 4/3/06**

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N o . C 02-0508 JF (PR) ORDER RE-OPENING CASE; O R D E R TO SHOW CAUSE

( D o c k e t Nos. 18, 19)

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On February 28, 2006, Petitioner filed a second amended petition. Accordingly, the C o u r t will RE-OPEN the instant action and order Respondent to show cause why the sec ond amended petition should not be granted. BACKGROUND Petitioner was convicted in the Sonoma Superior Court of three counts of assault, t h r e e counts of false imprisonment, and three counts of intimidation of victims/witnesses (s e e Cal. Pen Code §§ 245(a)(1), 236, 136.1(c)(1)). On November 10, 1998, Petitioner w a s sentenced to 168 years-to-life with enhancements for prior convictions. O n direct appeal, the California Court of Appeal affirmed the judgment on June 2 3 , 2000 in an unpublished opinion. The California Supreme Court denied a petition for review on October 18, 2000. Petitioner filed a habeas petition in the Sonoma County Su per ior Court and in the California Court of Appeal. Both petitions were denied. Petitioner filed a federal habeas petition on January 28, 2002. Petitioner then filed an amen ded petition, containing only exhausted claims. On January 11, 2005, this Court s t a ye d the petition and granted Petitioner's motion to stay this action while he exhausted his claims in the state supreme court. Petitioner filed a state habeas petition in the state s u p r e m e court, which was denied summarily on February 1, 2006. On February 15, 2006, P e t i ti o n e r filed a letter with the Court requesting an extension of time to file an amended petit ion . On February 28, 2006, Petitioner filed an amended petition. DISCUSSION A. S t a n d a r d of Review T h i s Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in c u s t o d y in violation of the Constitution or laws or treaties of the United States." 28 U.S .C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to s h o w cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.
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B.

P e t i t io n e r ' s Claims As grounds for federal habeas relief, Petitioner alleges (1) ineffective assistance of

c o u n s e l ; (2) his sentence of 168 years-to-life is cruel and unusual punishment; (3) conflicts between Petitioner and his co-defendant's counsel during the reading of the jury instruc tions violated his right to counsel under the Sixth Amendment; and (4) his Fifth a n d Sixth Amendment rights were violated by the use of evidence against him of i n c r im i n a t in g telephone statements elicited by an informant for the Petaluma Police with out the right of counsel. Liberally construed, Petitioner's allegations are sufficient to r e q u i re a response. The Court orders Respondent to show cause why the second amended petit ion should not be granted. CONCLUSION 1. 2. The Clerk shall administratively RE-OPEN this action. P e t i ti o n e r 's request for extension of time to file his second amended

petition (docket no. 18) is GRANTED. 3. T h e Clerk shall serve by mail a copy of this order and the second amended

petition (docket no. 19) and all attachments thereto upon the respondent and the respo nden t's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this order on the Petitioner. 4. Res pon dent shall file with the Court and serve on Petitioner, within sixty

days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Ru les Governing Section 2254 Cases, showing cause why a writ of habeas corpus should n o t be granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relev ant to a determination of the issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse w i t h the Court and serving it on Respondent within thirty days of his receipt of the answ er. \\\
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5.

R e s p o n d e n t may file a motion to dismiss on procedural grounds in lieu of

a n answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules G o v e r n i n g Section 2254 Cases within sixty days of the issuance of this order. If R e s p o n d e n t files such a motion, Petitioner shall file with the Court and serve on R e s p o n d e n t an opposition or statement of non-opposition within thirty days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply w i t h i n fifteen days of receipt of any opposition. 6. I t is Petitioner's responsibility to prosecute this case. Petitioner is reminded

t h a t all communications with the Court must be served on respondent by mailing a true copy of the document to Respondent's counsel. Petitioner must keep the court and all p a r t ie s informed of any change of address by filing a separate paper captioned "Notice of Ch ang e of Address." He must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. 4/3/_ _ D A T E D : _ _ _ _ _ _ 06 _ _ _ _ _ _ JEREMY FOGEL United States District Judge

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A copy of this ruling was mailed to the following: J o s e p h Raymond Leivas C-62526 C S P - Corcoran P . O . Box 3461 C o r c o r a n , CA 93212-3461 M o r r i s Beatus C a l i f o rn i a Attorney General's Office 4 5 5 Golden Gate Avenue, Suite 11000 S a n Francisco CA 94102-7004

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