Magidson v. Allison

Filing 7

ORDER TO SHOW CAUSE RE: PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Edward J. Davila on 2/22/2013. (ejdlc1, COURT STAFF) (Filed on 2/22/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION CASE NO. 5:10-cv-05118 EJD MICHAEL WILLIAM MAGIDSON, 11 ORDER TO SHOW CAUSE RE: PETITION FOR WRIT OF HABEAS CORPUS Petitioner(s), For the Northern District of California United States District Court 10 12 13 v. KATHLEEN ALLISON, Warden, 14 Respndent(s). 15 16 / Petitioner Michael William Magidson (“Petitioner”), represented by counsel, has filed a 17 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction 18 from Alameda County Superior Court for second-degree murder. See Docket Item No. 1. Having 19 undertaken an initial review of the Petition and for good cause shown, the court will order 20 Respondent to show cause why the Petition should not be granted. 21 22 I. BACKGROUND Petitioner and co-defendants Jose Merel (“Merel”) and Jason Cazares (“Cazares”) were 23 charged by Information of the murder of Edward Araujo (“Araujo”). On September 12, 2005, a jury 24 returned guilty verdicts against Petitioner and Merel. On January 27, 2006, Petitioner was sentenced 25 to a custodial term of 15 years to life. 26 According to the Petition, an abbreviated version of the events leading up to Petitioner’s 27 conviction are as follows: Araujo, although anatomically male, had been dressing full-time as a 28 woman since the age of 14, and met Petitioner and Cazares during the summer of 2002 when Araujo 1 CASE NO. 5:10-cv-05118 EJD ORDER TO SHOW CAUSE RE: PETITION FOR WRIT OF HABEAS CORPUS 1 was 17 years old. Araujo eventually became a regular visitor to Merel’s house in Newark, 2 California, where Petitioner, Merel, Cazares, Jaron Nabors (“Nabors”) and others routinely gathered 3 to “drink, play dominoes . . . and smoke marijuana.” 4 Over the course of some months, Araujo had sexual contact with Nabors, Merel, and 5 Petitioner, and as a result, the three began to speculate whether Araujo, who had always portrayed to 6 be female, was actually male. After confronting Araujo with this question on October 4, 2002, it 7 was revealed that Araujo was male. Araujo was beaten as a result and, eventually, killed. 8 9 Petitioner’s conviction was affirmed by the California Court of Appeal on May 12, 2009. The California Supreme Court denied a petition for review on August 19, 2009. 11 For the Northern District of California United States District Court 10 II. DISCUSSION A district court may entertain a petition for writ of habeas corpus “in behalf of a person in 12 custody pursuant to the judgment of a State court only on the ground that he is in custody in 13 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 14 Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the 15 respondent to show cause why the writ should not be granted, unless it appears from the application 16 that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 17 Here, Petitioner makes three principal arguments in support of the writ: (1) the prosecutor 18 violated Petitioner’s rights under the Sixth and Fourteenth Amendments by “vouching” for Merel 19 during his testimony; (2) the prosecutor violated Petitioner’s rights under the Sixth and Fourteenth 20 Amendments by impugning the integrity of defense counsel and implying that defense counsel 21 believed petitioner was guilty; and (3) instructional error. Petitioner further alleges he has exhausted 22 his state remedies as to these arguments. Liberally construed, Petitioner’s claims appear cognizable 23 under § 2254 and warrant a response from Respondent. 24 25 Accordingly, the court orders Respondent to show cause why the petition should not be granted. III. 26 27 The court orders as follows: 28 1. ORDER The Clerk shall serve by mail a copy of this Order to Show Cause and the Petition 2 CASE NO. 5:10-cv-05118 EJD ORDER TO SHOW CAUSE RE: PETITION FOR WRIT OF HABEAS CORPUS 1 and all attachments upon Respondent and Respondent’s attorneys, the Attorney 2 General of the State of California. The Clerk shall also serve a copy of this Order on 3 Petitioner. 4 2. Respondent shall file with the court and serve on Petitioner, within sixty (60) days of 5 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules 6 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 7 not be granted. Respondent shall file with the answer and serve on Petitioner a copy 8 of all portions of the underlying state criminal court records that have been 9 transcribed previously and that are relevant to a determination of the issues presented 11 For the Northern District of California United States District Court 10 by the Petition. 3. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 12 the court and serving a copy on Respondent within thirty (30) days of his receipt of 13 the answer. 14 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, 15 as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 16 Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the 17 court and serve on Respondent an opposition or statement of non-opposition within 18 thirty (30) days of receipt of the motion. Respondent may file with the court and 19 serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 20 21 IT IS SO ORDERED. 22 23 Dated: February 22, 2013 EDWARD J. DAVILA United States District Judge 24 25 26 27 28 3 CASE NO. 5:10-cv-05118 EJD ORDER TO SHOW CAUSE RE: PETITION FOR WRIT OF HABEAS CORPUS

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