Hernandez v. Walker

Filing 13

ORDER TO SHOW CAUSE; Granting Leave to Proceeding In Forma Pauperis. Signed by Judge Ronald M. Whyte on 12/7/09. (jg, COURT STAFF) (Filed on 12/8/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in
Order to Show Cause; Granting Leave to Proceed In Forma Pauperis 1 P:\PRO-SE\SJ.Rmw\HC.09\Hernandez457oscifp.wpd

*E-FILED - 12/8/09*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANTHONY PEREZ HERNANDEZ, Petitioner, v. JAMES WALKER, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 09-3457 RMW (PR) ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket Nos. 3, 5)

Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's applications for leave to proceed in forma pauperis (docket nos. 3,5) are GRANTED. The court orders respondent to show cause why a writ of habeas corpus should not be granted. BACKGROUND According to the petition, petitioner was convicted by a Santa Clara County jury of six counts of rape. On January 12, 2005, petitioner was sentenced to 90 years to life. Petitioner alleges that he has exhausted his state remedies, which were all denied. The instant federal petition was filed on July 27, 2009. DISCUSSION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court 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." 28 U.S.C. § 2243. B. Petitioner's Claims As grounds for federal habeas relief petitioner asserts that: (1) the trial court erred in sua sponte instructing the jury on the lesser included offense of incest; (2) the trial court erred in denying defense counsel's request to instruct the jury on unlawful sexual intercourse, pursuant to California Penal Code § 261.5; (3) the prosecutor committed misconduct by: (a) vouching for the credibility of the victim, (b) failing to disclose exculpatory evidence and impeachment material, (c) misstating material facts; (4) he was prejudiced by cumulative instances of prosecutorial misconduct; (5) he received ineffective assistance of counsel for: (a) failing to impeach the victim and other prosecution witnesses, (b) failing to object to prejudicial evidence and prosecutorial misconduct, (c) violating the attorney-client privilege, (d) failing to investigate, (e) cumulative errors; (6) the trial court's denial of his Marsden motions deprived petitioner of effective assistance of counsel; (7) the trial court erred by admitting evidence of petitioner's prior conduct of domestic and sexual violence; (8) the trial court improperly denied admission of a letter that the victim sent to petitioner; (9) the evidence was insufficient to establish that petitioner personally inflicted great bodily injury on the victim; (10) the trial court erroneously instructed the jury that pregnancy or child birth could constitute great bodily injury; and (11) he received ineffective assistance of appellate counsel for failing to raise grounds 1-4 and 5(c). Liberally construed, petitioner's allegations are sufficient to require a response. The court orders respondent to show cause why the petition should not be granted. CONCLUSION 1. GRANTED.
Order to Show Cause; Granting Leave to Proceed In Forma Pauperis 2 P:\PRO-SE\SJ.Rmw\HC.09\Hernandez457oscifp.wpd

Petitioner's motions to proceed in forma pauperis (docket nos. 3, 5) are

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2.

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

no. 1) and all attachments thereto upon the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on the petitioner. 3. Respondent shall file with the court and serve on petitioner, within ninety days of

the filing date of this order and the petition, 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 granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the underlying state criminal 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 days of the filing date of the answer. 4. 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 within ninety days of the filing date of this order. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of nonopposition within thirty days of the file date of the motion, and respondent shall file with the court and serve on petitioner a reply within fifteen days of any opposition. 5. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that

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 parties informed of any change of address by filing a separate paper captioned "Notice of Change 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. DATED: 12/7/09 RONALD M. WHYTE United States District Judge

Order to Show Cause; Granting Leave to Proceed In Forma Pauperis 3 P:\PRO-SE\SJ.Rmw\HC.09\Hernandez457oscifp.wpd