Trujillo v. Lewis et al

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Jeremy Fogel on 6/13/11. (dlm, COURT STAFF) (Filed on 7/7/2011)

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NOT FOR CITATION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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MARIO TRUJILLO,
Petitioner,

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vs.

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GREG LEWIS, Warden,
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Respondent.
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No. C 11-00522 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 Monterey County Superior Court of first

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degree murder with gang and firearms enhancements, shooting into an occupied vehicle

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with a gang enhancement, and a gang crime. (Pet. at 2.) On October 25, 2007, Petitioner

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was sentenced to sixty-five years to life in state prison. (Id.)
Order to Show Cause
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Petitioner appealed his conviction, with the state high court denying review. (Id. at

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3.) Petitioner filed a state habeas petition in the state superior court which granted

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Petitioner’s claim of double jeopardy, and ordered the trial court to reverse and dismiss

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count four and vacate sentence thereon. (Id., Ex. E.) Petitioner filed the instant federal

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petition on March 3, 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.

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Petitioner’s Claims
As grounds for federal habeas relief, Petitioner claims the following: 1) he was

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denied his right to present a defense when the trial court excluded a defense expert who

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would have testified on the unreliability of the witnesses’ identifications, (Pet. Attach. at

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1); 2) Petitioner was denied his right to confrontation when the trial court admitted

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evidence from a 2004 booking form without presenting for cross-examination the witness

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who supplied the information on the form, (id., Attach. at 7); 3) the trial court violated

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Petitioner’s right to due process when it admitted into evidence the transcripts of

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Petitioner’s jailhouse telephonic conversations, (id., Attach. at 10); 4) the trial court

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deprived Petitioner of due process by denying discovery and excluding evidence

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concerning a thirty party suspect, (id., Attach. at 16); 5) the trial court erred when it

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denied discovery of a confidential informant, (id., Attach. at 20); and 6) cumulative

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effect, (id., Attach. at 22). 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.

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CONCLUSION

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1.

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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.
2.

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

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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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6/13/11
DATED: ______________________

JEREMY FOGEL
United States District Judge

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Order to Show Cause
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

MARIO TRUJILLO,

Case Number: CV11-00522 JF

Petitioner,

CERTIFICATE OF SERVICE

v.
GREG LEWIS, 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.
7/7/11
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.

Mario Trujillo F-99682
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95531
Dated:

7/7/11
Richard W. Wieking, Clerk