Alvarez v. State of California

Filing 19

ORDER TO SHOW CAUSE; ORDER Granting Petitioner's Request to Dismiss Unexhausted Claim. Habeas Answer due by 8/6/2012. Signed by Judge Ronald M. Whyte on 6/6/12. (jg, COURT STAFF) (Filed on 6/7/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CHRISTIAN T. ALVAREZ,

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Petitioner,
vs.
M.D. MCDONALD, Warden,
Respondent.

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No. C 10-5744 RMW (PR)
ORDER GRANTING
PETITIONER’S REQUEST TO
DISMISS UNEXHAUSTED
CLAIM; ORDER TO SHOW
CAUSE

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Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. On October 25, 2011, the court granted respondent’s motion to dismiss for

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failure to exhaust and directed petitioner to elect one of three options. On February 29, 2012,

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petitioner wrote a letter to the court requesting the status of his case. On March 28, 2012, the

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court sua sponte granted petitioner an extension of time to make his election, in light of the fact

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that he never received the initial order. On April 25, 2012, petitioner again contacted the court,

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alleging that he did not receive the initial order. On May 5, 2012, petitioner filed a pleading

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entitled “Election by Petitioner,” in which he chose to delete his unexhausted claim and proceed

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with his exhausted claims. Due to petitioner’s failure to receive the court’s orders, the court

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deems the response timely.

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Accordingly, Petitioner’s request to continue with only the exhausted claims (Claims 2-

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3), and dismiss the unexhausted claim (Claim 1) is GRANTED. The courts renews its order to

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show cause to respondent as to why the petition should not be granted as to the remaining two
Order Granting Petitioner’s Request to Dismiss Unexhausted Claim; Order To Show Cause
G:\PRO-SE\SJ.Rmw\HC.10\Alvarez744osc2.wpd

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claims: (1) the trial court erred in admitting irrelevant and prejudicial criminal gang evidence,

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and (2) the trial court erred by giving the jury an incomplete and confusing jury instruction on

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attempted murder.

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CONCLUSION

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1.

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1 is GRANTED.

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2.

Petitioner’s request to proceed with only the exhausted claims and dismiss Claim

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

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days of the issuance 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 his receipt of the answer.
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It is petitioner’s responsibility to prosecute this case. petitioner is reminded that

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all communications with the court must be served on respondent by mailing a true copy of the

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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.

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DATED: _______________
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RONALD M. WHYTE
United States District Judge

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Order Granting Petitioner’s Request to Dismiss Unexhausted Claim; Order To Show Cause
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G:\PRO-SE\SJ.Rmw\HC.10\Alvarez744osc2.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CHRISTIAN T ALVAREZ,

Case Number: CV10-05744 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
STATE OF CALIFORNIA et al,
Defendant.

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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 June 7, 2012, 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.

Christian T Alvarez G-22117
D-4/Cell-138
PO Box 4670
Lancaster, CA 93539-4670

Dated: June 7, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk