Holloway v. Sisto

Filing 11

ORDER TO SHOW CAUSE.The clerk shall serve by certified mail a copy of this order and the first amended petition (Docket No. 10) and all attachments thereto on respondent and respondents attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner. Signed by Judge James Ware on 11/24/2008. (ecg, COURT STAFF) (Filed on 11/25/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

DERRICK EZRE HOLLOWAY, Petitioner, vs. D. K. SISTO, Warden, Respondent.

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No. C 06-05545 JW (PR) ORDER TO SHOW CAUSE

Petitioner, a state prisoner incarcerated at the California State Prison - Solano in Vacaville, California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. The Court dismissed the petition with leave to amend, and on October 1, 2007, petitioner filed a first amended petition. Petitioner has paid the filing fee.

BACKGROUND Petitioner was convicted in the Superior Court of the State of California in and for Alameda County of first degree murder, and various related charges and sentence enhancements. He received a sentence of 36 years to life in state prison. Petitioner appealed, and the state courts affirmed the conviction. Petitioner filed
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state habeas petitions in the state courts, and the California Supreme Court denied review on August 2, 2006. Petitioner filed the instant federal habeas action on September 11, 2006.

DISCUSSION A. Standard of Review This court may entertain a petition for a 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 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243. B. Legal Claims Petitioner claims the following grounds for federal habeas relief: (1) there was insufficient evidence to support the conviction in violation of due process; (2) the "trial court's refusal to grant a Kelly-Frye hearing on the issue of population substructering [sic]" denied petitioner his right to due process, (Docket No. 10 at 6); (3) admission at trial of statements obtained in violation of Miranda v. Arizona, 384 U.S. 463 (1968), violated petitioner's Fifth Amendment rights; (4) the trial court violated due process by giving jury instruction CALJIC No. 2.03; (5) petitioner was deprived of his right under the Confrontation Clause to cross-examine Detective Kannisto; (6) petitioner was deprived of his constitutional right to effective assistance of counsel when counsel failed to investigate petitioner's alibi defense; (7) trial counsel rendered ineffective assistance by failing to investigate forensic DNA evidence; (8) trial counsel rendered ineffective assistance by failing to object to the admission at trial of a tape recorded statement by petitioner; and (9) petitioner was deprived of his constitutional right to the effective assistance of appellate
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United States District Court

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For the Northern District of California

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counsel when appellate counsel failed to pursue viable claims on appeal. Liberally construed, these claims appear cognizable under § 2254 and merit an answer from respondent.

CONCLUSION For the foregoing reasons and for good cause shown, 1. The clerk shall serve by certified mail a copy of this order and the

first amended petition (Docket No. 10) and all attachments thereto on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner. 2. Respondent shall file with the court and serve on petitioner, within

United States District Court

11
For the Northern District of California

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sixty (60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. 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 relevant 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 with the court and serving it on respondent within thirty (30) days of his receipt of the answer. 3. Respondent may file a motion to dismiss on procedural grounds in lieu

of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of nonopposition within thirty (30) days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fifteen (15) days of receipt of any opposition. 4. Petitioner is reminded that all communications with the court must be
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served on respondent by mailing a true copy of the document to respondent's counsel. 5. It is petitioner's responsibility to prosecute this case. Petitioner 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, pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute.
November 24, 2008

DATED:

JAMES WARE United States District Judge

United States District Court

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For the Northern District of California

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

DERRICK EZRE HOLLAWAY, Petitioner, v. D.K. SISTO, et al., Respondent. /

Case Number: CV06-05545 JW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11/25/2008 , I SERVED a true and correct copy(ies) of the That on attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Derrick Ezre Holloway T-72225 California State Prison -Solano P. O. Box 4000 Vacaville, CA 95696-4000 Dated: 11/25/2008 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk