Hernandez v. Walker

Filing 77

ORDER RE-OPENING CASE; ORDER TO SHOW CAUSE. Signed by Judge Ronald M. Whyte on 10/22/13. (jgS, COURT STAFF) (Filed on 10/23/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY PEREZ HERNANDEZ,
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Petitioner,
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vs.
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JAMES WALKER, Warden,
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Respondent.
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No. C 09-3457 RMW (PR)
ORDER RE-OPENING CASE;
ORDER TO SHOW CAUSE

Petitioner, a California prisoner proceeding pro se, filed this petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The court found that petitioner stated eleven cognizable

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claims and ordered respondent to show cause why the petition should not be granted. On

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September 23, 2011, the court granted petitioner’s request to stay his fully exhausted petition, in

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order that he could return to state court to exhaust unexhausted claims. On June 12, 2013,

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petitioner filed a motion to re-open this action, and an accompanying amended petition.

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Petitioner’s motion is GRANTED. The Clerk shall RE-OPEN this action, and FILE the

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amended petition.1 Respondent is ordered to show cause why the amended petition should not

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be granted.

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Petitioner’s motion for an extension of time in which to file his amended petition is
GRANTED.
Order Re-Opening Case; Order to Show Cause
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BACKGROUND

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According to the amended petition, petitioner was convicted by a jury in Santa Clara

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Superior Court of six counts of rape. On January 12, 2005, petitioner was sentenced to 96 years

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to life. Petitioner alleges that he has exhausted his state remedies.

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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 in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
As grounds for federal habeas relief, petitioner claims: (1) the trial court erred by failing

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to sua sponte instruct the jury on the lesser included offense of incest (Claim I) (2) the trial court

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erred in denying defense counsel’s request to instruct the jury on unlawful sexual intercourse,

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pursuant to California Penal Code § 261.5 (Claim II); (3) the prosecutor committed misconduct

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by: (a) vouching for the credibility of the victim (Claim III), (b) failing to disclose exculpatory

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evidence and impeachment material (Claim IV), (c) misstating material facts and suborning

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perjured testimony (Claim V); (4) petitioner received ineffective assistance of counsel for: (a)

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failing to impeach the victim and other prosecution witnesses (Claims XI(A) and (B)), (b) failing

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to object to prejudicial evidence and prosecutorial misconduct (Claim XI(C), (c) permitting

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joinder of six counts of rape without objection (Claim XV), and (d) cumulative errors (Claim

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XIV); (5) the trial court’s denial of petitioner’s Marsden motions deprived petitioner of effective

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assistance of counsel (Claim VI); (7) the trial court erred by admitting evidence of petitioner’s

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prior conduct of domestic and sexual violence (Claim VII); (8) the trial court improperly denied
Order Re-Opening Case; Order to Show Cause
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admission of a letter that the victim sent to petitioner (Claim VIII); (9) the evidence was

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insufficient to convict petitioner of rape (Claims IX and XII); (10) the trial court erroneously

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instructed the jury that pregnancy or child birth could constitute great bodily injury (Claim X);

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and (11) the trial court lacked jurisdiction to try petitioner for Counts 2 through 5 (Claim XIII).

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Liberally construed, petitioner’s allegations are sufficient to require a response. Liberally

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construed, petitioner’s allegations are sufficient to require a response. The court orders

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respondent to show cause why the amended petition should not be granted.

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CONCLUSION

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1.

The clerk shall administratively RE-OPEN this action.

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2.

The clerk shall serve by mail a copy of this order and the first amended

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petition and all attachments thereto upon respondent’s attorney, the Attorney General of the State

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of California. The clerk shall also serve a copy of this order on the petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within sixty

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days of the filing date of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of

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the state trial record that have been transcribed previously and that are relevant to a

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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 with the
court and serving it on respondent within thirty days of the filing date of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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

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2254 Cases within sixty days of the filing date of this order. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or statement of non-

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opposition within thirty days of the filing date of the motion, and respondent shall file with the

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court and serve on petitioner a reply within fifteen days of the filing date of any opposition.

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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
Order Re-Opening Case; Order to Show Cause
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document to respondent’s counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must

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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

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______________________________
RONALD M. WHYTE
United States District Judge

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Order Re-Opening Case; Order to Show Cause
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ANTHONY PEREZ HERNANDEZ,

Case Number: CV09-03457 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JAMES WALKER et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2013, I SERVED a true and correct copy(ies) of the 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.

Anthony Perez Hernandez J-91728
California State Prison-Solano
5-147-L
P.O. Box 4000
Vacaville, CA 95696-4000
Dated: October 23, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk