Phillips v. Gipson

Filing 4

ORDER TO SHOW CAUSE; GRANTING 2 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. Petitioner's motion for leave to proceed in forma pauperis is GRANTED. The Clerk shall serve by certified mail a copy of this order and the petition and all attach ments 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. Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Alfonzo A. Phillips. Signed by Judge Edward J. Davila on 2/10/2012. (ecg, COURT STAFF) (Filed on 2/15/2012)

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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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ALFONZO A. PHILLIPS,
Petitioner,

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vs.

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CONNIE GIPSON, Warden,
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Respondent.
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No. C 11-04707 EJD (PR)
ORDER TO SHOW CAUSE;
GRANTING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS

(Docket No. 2)

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Petitioner, a state prisoner incarcerated at the Corcoran State Prison, has filed

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a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his

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state conviction. Petitioner has filed a motion for leave to proceed in forma

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pauperis. (Docket No. 2.)

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BACKGROUND
According to the petition, Petitioner was found guilty by a jury in Alameda

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County Superior Court of murder and attempted car-jacking. (Pet. at 2.) Petitioner

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was sentenced to 28 years to life in state prison. (Id.)

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Petitioner’s conviction was affirmed on direct appeal. Petitioner filed the
instant federal habeas petition on September 21, 2011.
Order to Show Cause; Granting IFP
G:\PRO-SE\SJ.EJD\HC.11\04707Phillips_osc&ifp.wpd

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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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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For the Northern District of California

United States District Court

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B.

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

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court erred in excluding evidence of third party culpability; 2) the trial court erred in

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admitting unduly suggestive and unreliable identification evidence; 3) the trial court

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abused its discretion in excluding crime scene evidence to impeach witness’

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testimony; 4) the trial court erred in excluding evidence of a witness’s bias; 5) the

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trial court erred in excluding evidence of a police officer’s bias ; 6) prosecutorial

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misconduct; and 7) cumulative error. Liberally construed, these claims appear

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cognizable 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.

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Petitioner’s motion for leave to proceed in forma pauperis, (Docket

No. 2), is GRANTED.
2.

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

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order on Petitioner.

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3.

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

Order to Show Cause; Granting IFP
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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.

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

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

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receipt of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu

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For the Northern District of California

United States District Court

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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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5.

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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This order terminates Docket No. 2.

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DATED:

2/10/2012

EDWARD J. DAVILA
United States District Judge

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Order to Show Cause; Granting IFP
G:\PRO-SE\SJ.EJD\HC.11\04707Phillips_osc&ifp.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ALFONZO A PHILLIPS,

Case Number: CV11-04707 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
CONNIE GIPSON, 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.
2/15/2012
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.

Alfonzo A. Phillips G-00520
State Prison Corcoran
P. O. Box 3466
Corcoran, CA 93212
Dated:

2/15/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk