Scott v. Lewis

Filing 28

ORDER REOPENING CASE; ORDER TO SHOW CAUSE. Signed by Judge Hon. Lucy H. Koh on 4/8/2015. *Includes mailing instructions for Clerk of the Court.* (sms, COURT STAFF) (Filed on 4/8/2015)

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FILED

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A~R

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J B2015

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Petitioner,
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vs.
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G.D. LEWIS, Warden,
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Respondent.
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No. C 11-3128 LHK (PR)

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ERIC D. SCOTT,
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ORDER RE-OPENING CASE;
ORDER TO SHOW CAUSE

Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why

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petitioner should not be granted relief. Respondent filed an answer, and petitioner filed a

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traverse. Thereafter, petitioner requested a stay of proceedings in order to exhaust two other

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claims in state court. On June 14, 2013, the court granted petitioner's request for a stay. On

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December 1, 2014, petitioner filed an amended petition. The court sua sponte RE-OPENS this

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action. Respondent is ordered to show cause why the amended petition should not be granted.

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DISCUSSION

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A.

Standard ofReview

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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
Order Re-Opening Case; Order to Show Cause
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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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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 federal habeas relief, petitioner claims that: (1) CALCRIM No. 362

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violated petitioner's right to testify in his own behalf and deprived petitioner of a meaningful

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opportunity to present a defense; (2) CALCRIM No. 337 violated petitioner's right to present

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evidence; (3) the instructional errors resulted in cumulative prejudice; (4) the admission of

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uncorroborated testimony ofthe accomplices violated petitioner's right to due process; and (5)

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counsel provided ineffective assistance by failing to investigate evidence regarding Sgt. Mark

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Sanchez and Sgt. Louis Cruz. Liberally construed, these allegations are sufficient to require a

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response. The court orders respondent to show cause why the amended petition should not be

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granted.

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Petitioner also alleges that appellate counsel rendered ineffective assistance. Petitioner

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appears to claim that appellate counsel should have raised an argument that the restitution fine

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was excessive. However, this claim is not cognizable on federal habeas review because it does

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not challenge the validity or duration of petitioner's confinement. Cf United States v. Thiele,

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314 F .3d 399, 400 (9th Cir. 2002) (rejecting ineffective assistance of counsel claim in a Section

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2255 motion based on the failure to challenge restitution fine as the claim was not cognizable

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basis for habeas relief because the claim did not challenge validity or duration of confinement).

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Accordingly, this claim is DISMISSED with prejudice for failure to state a claim.

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CONCLUSION

The Clerk shall administratively RE-OPEN this action and FILE the first

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1.

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amended petition.

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2.

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

petition (docket no. 27) and all attachments thereto upon respondent and respondent's attorney,
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the Attorney General of the State of California. The Clerk shall also serve a copy of this order

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on the petitioner.

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3.

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

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days of the filing date 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 the filing date ofthe answer.

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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 sixty days of the filing date of this order. 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 ofthe filing date ofthe motion, and respondent shall file with the

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court and serve on petitioner a reply within fifteen days of the filing date of any opposition.

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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 ofthe

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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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ofthis action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

DATED:

4/ B/201)

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