Rodriguez v. Chavez

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Jeremy Fogel on 4/20/11. (dlm, COURT STAFF) (Filed on 4/29/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD A. RODRIGUEZ,
Petitioner,

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vs.

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F. X. CHAVEZ, Warden,
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Respondent.
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No. C 11-00179 JF (PR)

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ORDER TO SHOW CAUSE

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Petitioner, a California inmate proceeding pro se, seeks a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction. Petitioner

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has paid the filing fee. The Court orders Respondent to show cause why the petition

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should not be granted.

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STATEMENT

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Petitioner was found guilty by a jury in Santa Clara County Superior Court of

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robbery, aggravated assault, and a gang enhancement. (Pet. 2.) Petitioner was sentenced

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to fifteen years to life in state prison. (Id.)

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Petitioner appealed his conviction, with the state high court denying review in
Order to Show Cause
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2010. (Id. at 3.) Petitioner filed the instant federal petition on January 12, 2011.

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DISCUSSION

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A.

Standard of Review
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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

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custody in violation of the Constitution or laws or treaties of the United States.” 28

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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

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

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

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B.

Petitioner’s Claims

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As grounds for federal habeas relief, Petitioner claims the following: 1) Petitioner

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was denied his right under the Sixth Amendment confrontation clause; 2) the prosecution

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rendered the trial unfair by presenting “crime evidence purely for its inflammatory and

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prejudicial effect”; 3) there was insufficient evidence to support the gang enhancement;

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and 4) the trial court gave erroneous jury instruction with respect to the aggravated assault

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charge and trial counsel rendered ineffective assistance for failing to obtain the proper

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instructions; and 5) the sentence violates the Fifth Amendment prohibition against

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multiple punishment. Liberally construed, Petitioner’s claims are cognizable under §

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2254. The Court orders Respondent to show cause why the petition should not be

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granted.
CONCLUSION

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1.

The Clerk shall serve by mail a copy of this order and the petition

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and all attachments thereto upon the Respondent and the Respondent’s attorney, the

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Attorney General of the State of California. The Clerk shall also serve a copy of this

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order on the Petitioner.

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2.

Respondent shall file with the Court and serve on Petitioner, within sixty

Order to Show Cause
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(60) days of the date this order is filed, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be granted. Respondent shall file with the answer and serve on Petitioner a

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copy of all portions of the state parole record that have been transcribed previously and

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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

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with the Court and serving it on Respondent within thirty (30) days of that the answer is

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filed.

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3.

Alternatively, Respondent may, within sixty (60) days of the date this order

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is filed, file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in

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the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If

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Respondent files such a motion, Petitioner shall file with the Court and serve on

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Respondent an opposition or statement of non-opposition within thirty (30) days of the

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date the motion is filed, and Respondent shall file with the court and serve on Petitioner a

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reply within fifteen (15) days of the date any opposition is filed.

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4.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded

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that all communications with the Court must be served on respondent by mailing a true

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copy of the document to Respondent’s counsel. Petitioner must keep the Court and all

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parties informed of any change of address by filing a separate paper captioned “Notice of

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Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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4/20/11
DATED: ______________________

JEREMY FOGEL
United States District Judge

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Order to Show Cause
P:\PRO-SE\SJ.JF\HC.11\00179Rodriguez_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RICHARD RODRIGUEZ,

Case Number: CV11-00179 JF

Petitioner,

CERTIFICATE OF SERVICE

v.
F.X. CHAVEZ, Warden,
Respondent.

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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.
4/29/11
That on
, 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.

Richard A. Rodriguez G-16766
Sierra Conservation Center
5150 O’Burnes Ferry Road
Jamestown, CA 95327
Dated:

4/29/11
Richard W. Wieking, Clerk