Maravilla v. Swarthout

Filing 7

ORDER TO SHOW CAUSE. The Clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Signed by Judge Edward J. Davila on 2/1/2012. (ecg, COURT STAFF) (Filed on 2/3/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JAVIER RUIZ MARAVILLA,
Petitioner,

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vs.

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G. SWARTHOUT, Warden,
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Respondent.
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No. C 11-03385 EJD (PR)
ORDER TO SHOW CAUSE

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

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

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Petitioner has paid the filing fee. (See Docket No. 5.)

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BACKGROUND

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According to the petition and the attachments thereto, Petitioner pleaded no

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contest in Monterey County Superior Court to count 1 - robbery (Cal. Penal Code. §

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211), and admitted an allegation under Penal Code § 186.22(b)(1) (felony

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committed/criminal street gang) on condition that he receive felony probation, and

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that count 2 was to be dismissed. (Pet. Ex. 1 at 2.) He was placed on felony

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probation for five years, and sentenced to 365 days in county jail. Thereafter,
Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\03385Maravilla_osc.wpd

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Petitioner violated the terms of probation twice, which ultimately resulted in the

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court imposing a 13-years sentence. (Id.)
Petitioner filed state habeas petitions, with the California Supreme Court

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denying review on June 22, 2011. (Id. at 4; Ex. 1.) Petitioner filed the instant

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federal habeas petition on July 11, 2011.

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DISCUSSION

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A.

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

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person in custody pursuant to the judgment of a State court only on the ground that

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For the Northern District of California

United States District Court

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a).
It 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

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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B.

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Legal Claims
Petitioner raises the following claims for federal habeas relief: 1) ineffective

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assistance of trial counsel for failing to investigate whether Petitioner’s “factual

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innocence” with respect to the gang allegation under Penal Code § 186.22(b)(1); 2)

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the Government violated the conditions of the plea agreement; and 3) ineffective

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assistance of appellate counsel. Liberally construed, these claims appear cognizable

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under § 2254 and merit an answer from Respondent.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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

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petition and all attachments thereto on Respondent and Respondent’s attorney, the

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Attorney General of the State of California. The Clerk also shall serve a copy of this
Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\03385Maravilla_osc.wpd

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order on Petitioner.
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Respondent shall file with the court and serve on petitioner, within

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sixty (60) days of the issuance of this order, an answer conforming in all respects to

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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be issued. Respondent shall file with the answer and serve

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on Petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the

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petition.

traverse with the Court and serving it on Respondent within thirty (30) days of his

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For the Northern District of California

If Petitioner wishes to respond to the answer, he shall do so by filing a

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United States District Court

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receipt of the answer.

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3.

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

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

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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall

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

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opposition within thirty (30) days of receipt of the motion, and Respondent shall

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file with the court and serve on Petitioner a reply within fifteen (15) days of receipt

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of any opposition.

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4.

Petitioner is reminded that all communications with the court must be

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served on Respondent by mailing a true copy of the document to Respondent’s

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counsel. Petitioner must also keep the Court and all parties informed of any change

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of address.

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DATED: February 1, 2012
EDWARD J. DAVILA
United States District Judge

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Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\03385Maravilla_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAVIER RUIZ MARAVILLA,

Case Number: CV11-03385 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
G. SWARTHOUT, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
2/3/2012
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.

Javier Ruiz Maravilla G-14768
P. O. Box 4000
Vacaville, CA 95696-4000
Dated:

2/3/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk