Robinson v. Miller

Filing 20

ORDER by Judge Lucy H. Koh denying 18 Motion for Hearing; denying 18 Motion for Discovery (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 8/30/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LENORA ROBINSON,

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Petitioner,

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v.
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WARDEN W. MILLER,

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Respondent.

No. C 11-1339 LHK (PR)
ORDER TO SHOW CAUSE

(Docket No. 18.)

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Petitioner, a state prisoner proceeding pro se, filed a second amended petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, challenging her 2007 conviction and sentence. The
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Court orders Respondent to show cause why a writ of habeas corpus should not be granted.
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DISCUSSION
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A.

Standard of Review

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a state court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
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v. Hodges, 423 U.S. 19, 21 (1975).
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A district court shall “award the writ or issue an order directing the respondent to show
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Order to Show Cause
P:\PRO-SE\SJ.LHK\HC.11\Robinson339osc.wpd

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

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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 relief, Petitioner alleges that: (1) trial counsel rendered ineffective

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assistance; (2) there was insufficient evidence to support her convictions; (3) the prosecutor

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committed misconduct during opening and closing arguments; (4) the prosecutor withheld

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exculpatory evidence; (5) she was denied her right to hire her own counsel of choice; (6) the trial

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court improperly denied her motion to substitute counsel; (7) the pretrial identification procedure

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was unduly suggestive; (8) the trial court erred in not conducting a competency hearing; (9)

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appellate counsel rendered ineffective assistance; and (10) cumulative errors were prejudicial.

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Liberally construed, these claims are cognizable on federal habeas review. The Court orders

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Respondent to show cause why the amended petition should not be granted as to the above

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issues.

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D.

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Motions for Evidentiary Hearing and Production of Discovery
Petitioner moves for an evidentiary hearing and production of discovery. (Dkt. No. 18.)

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It appears she has re-filed the same form motion she originally filed on March 21, 2011. The

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Court previously considered and rejected the motion on June 3, 2011. Thus, for the reasons

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stated in that June 3, 2011 order, Petitioner’s motions remain DENIED without prejudice.

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CONCLUSION

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1.

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without prejudice.

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2.

Petitioner’s motions for an evidentiary hearing and discovery are DENIED

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

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petition (docket no. 16) and all attachments thereto upon the Respondent and the Respondent’s

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

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this order on Petitioner.

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3.

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

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of the date this order is filed, 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
Order to Show Cause
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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 underlying state criminal record that have been transcribed previously and that are relevant to

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a 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 the date the answer is filed.

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4.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion,

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Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-

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opposition within thirty days of the date the motion is filed, and Respondent shall file with the

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court and serve on Petitioner a reply within fifteen days of the date any opposition is filed.

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5.

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

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any change of address by filing a separate paper captioned “Notice of Change of Address.” She

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b).

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This order terminates docket no. 18.

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IT IS SO ORDERED.

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DATED:

8/30/11
LUCY H. KOH
United States District Judge

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Order to Show Cause
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