Terrance Terwilligar v. Attorney General of the State of California, et al

Filing 6

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS re 2 . Signed by Judge Jeremy Fogel on 5/20/10. (dlm, COURT STAFF) (Filed on 6/9/2010)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TERRANCE TERWILLIGAR, Petitioner, vs. R. BARNES, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-01140 JF (PR) ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2) Petitioner, a California inmate proceeding pro se, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging his state conviction. Petitioner has filed a motion for leave to proceed in forma pauperis, (Docket No. 2). The Court orders Respondent to show cause why the petition should not be granted. STATEMENT On September 25, 2006, Petitioner was found guilty by a jury in Sonoma County Superior Court of several charges, including Penal Code 245(a)(1) (two counts of assault with a deadly weapon), 243(d) (battery), and 242 (misdemeanor battery). The jury also found true that Petitioner had two prior strikes under 1170.12, and five prior Order to Show Cause; Granting IFP; Denying Appt. Of Counsel P:\PRO-SE\SJ.JF\HC.10\Terwilligar01140_osc&ifp.wpd 1 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 prison terms under 667.5. (Pet.2.) Petitioner was sentenced to fifty-three years to life in state prison. (Id.) Petitioner filed direct appeals in the state courts, with the state high court denying review on June 10, 2009. (Id. at 3.) Petitioner filed the instant federal petition on March 4, 2010.1 DISCUSSION A. Standard of Review This 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 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 raises the following claims: 1) jury instructions concerning voluntary intoxication were erroneous and misleading, violating Petitioner's right to due process; and 2) ineffective assistance of counsel for failing to object to erroneous jury instructions. Liberally construed, Petitioner's claims are cognizable under 2254. The Court orders Respondent to show cause why the petition should not be granted. CONCLUSION 1. The Clerk shall serve by mail a copy of this order and the petition and all attachments thereto upon the Respondent and the Respondent's attorney, the 1 The matter was transferred to this Court on March 17, 2010, from the Eastern District. Order to Show Cause; Granting IFP; Denying Appt. Of Counsel P:\PRO-SE\SJ.JF\HC.10\Terwilligar01140_osc&ifp.wpd 2 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 Attorney General of the State of California. The Clerk shall also serve a copy of this order on the Petitioner. 2. Respondent shall file with the Court and serve on Petitioner, within sixty (60) days of the date this order is filed, 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 state parole 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 that the answer is filed. 3. Alternatively, Respondent may, within sixty (60) days of the date this order is filed, 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 non-opposition within thirty (30) days of the date the motion is filed, and Respondent shall file with the court and serve on Petitioner a reply within fifteen (15) days of the date any opposition is filed. 4. 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). 5. GRANTED. /// Order to Show Cause; Granting IFP; Denying Appt. Of Counsel P:\PRO-SE\SJ.JF\HC.10\Terwilligar01140_osc&ifp.wpd Petitioner's motion to proceed in forma pauperis (Docket No. 2) is 3 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 IT IS SO ORDERED. 5/20/10 DATED: ________________________ JEREMY FOGEL United States District Judge Order to Show Cause; Granting IFP; Denying Appt. Of Counsel P:\PRO-SE\SJ.JF\HC.10\Terwilligar01140_osc&ifp.wpd 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TERRANCE TERWILLIGAR, Petitioner, v. R. BARNES, Warden, Respondent. / Case Number: CV10-01140 JF 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. , I SERVED a true and correct copy(ies) of the That on 6/9/10 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. Terrance Terwilligar H-46832 P.O. Box 2210 Susanville, CA 96127 Dated: 6/9/10 Richard W. Wieking, Clerk

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