Samaro v. Swarthout

Filing 2

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 Habeas Answer due by 7/20/2012. Signed by Judge Edward J. Davila on 5/21/2012. (ecg, COURT STAFF) (Filed on 5/21/2012)

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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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ALEX R. SAMARO,
Petitioner,

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vs.

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GARY SWARTHOUT, Warden,
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Respondent.
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No. C 11-05010 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. 1.)

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BACKGROUND

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According to the petition and the attachments thereto, Petitioner was found

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guilty by a jury in Santa Clara County Superior Court of robbery in concert of an

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inhabited dwelling, use of a firearm, gang enhancement, first degree burglary with

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an inhabitant present, aggravated assault, possession of methamphetamine for sale,

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and transportation of methamphetamine. (Pet. at 2.) On March 21, 2007, Petitioner

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was sentenced to 23 years to life in state prison. (Id.)
Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\05010Samaro_osc.wpd

Petitioner appealed his conviction. The state appellate court affirmed the

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conviction, and the state high court denied review on October 13, 2010. (Id. at 3.)

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Petitioner filed the instant federal habeas petition on October 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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he is in custody in violation of the Constitution or laws or treaties of the United
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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For the Northern District of California

United States District Court

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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 counsel; (2) prosecutorial misconduct; (3) judicial misconduct; (4)

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there was insufficient evidence to support the gang enhancement; and (5) Petitioner

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was denied his right to cross-examine a witness. Liberally construed, these claims

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appear 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.

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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2.

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

sixty (60) days of the issuance of this order, an answer conforming in all respects to
Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\05010Samaro_osc.wpd

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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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3.

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

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

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For the Northern District of California

United States District Court

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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:

5/21/2012

EDWARD J. DAVILA
United States District Judge

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Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.11\05010Samaro_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ALEX RAY SAMARO,

Case Number: CV11-05010 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
GARY 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.
5/21/201
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.

Alex R. Samaro G-11990
California State Prison (Solano)
P. O. Box 4000
Vacaville, CA 95696
Dated:

5/21/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk