Phongboupha v. Hedgpeth

Filing 16

Order Granting Petitioner's Request to Dismiss Unexhausted Claim; ORDER TO SHOW CAUSE. Habeas Answer due by 2/1/2013. Signed by Judge Ronald M. Whyte on 11/30/12. (jg, COURT STAFF) (Filed on 12/3/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 GERRY GP PHONGBOUPHA, 11 Petitioner, 12 vs. 13 WARDEN A. HEDGPETH, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) No. C 12-1025 RMW (PR) ORDER GRANTING PETITIONER’S REQUEST TO DISMISS UNEXHAUSTED CLAIM; ORDER TO SHOW CAUSE 16 Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28 17 U.S.C. § 2254. On October 12, 2012, the court granted respondent’s motion to dismiss for 18 failure to exhaust and directed petitioner to elect one of three options. On November 6, 2012, 19 petitioner filed a pleading entitled “Election by Petitioner,” in which he chose to delete his 20 unexhausted claim and proceed with his exhausted claims. 21 Accordingly, Petitioner’s request to continue with only the exhausted claims (Claims 122 4), and dismiss the unexhausted claim (Claim 5) is GRANTED. The court renews its order to 23 show cause to respondent as to why the petition should not be granted as to the remaining four 24 claims: (1) Petitioner’s right to due process was violated when he was not allowed to be present 25 or consult with counsel when the trial judge had an ex parte meeting with Juror Number 7; 26 (2) the trial court improperly coerced a jury verdict after learning that they were deadlocked by 27 giving them a supplemental instruction; (3) the “kill zone” instruction to the jury should not have 28 Order Granting Petitioner’s Request to Dismiss Unexhausted Claim; Order To Show Cause G:\PRO-SE\SJ.Rmw\HC.12\Phongboupha025osc2.wpd 1 been given with respect to the attempted murder charge in counts 2, 3, and 4; and (4) the trial 2 court erred in admitting hearsay testimony, in violation of his rights to due process and 3 confrontation. 4 5 6 7 CONCLUSION 1. Petitioner’s request to proceed with only the exhausted claims and dismiss Claim 5 (ineffective assistance of counsel) is GRANTED. 2. Respondent shall file with the court and serve on petitioner, within sixty 8 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 9 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 10 granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of 11 the state trial record that have been transcribed previously, and that are relevant to a 12 determination of the issues presented by the petition. 13 14 15 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 his receipt of the answer. 3. It is petitioner’s responsibility to prosecute this case. petitioner is reminded that 16 all communications with the court must be served on respondent by mailing a true copy of the 17 document to respondent’s counsel. Petitioner must keep the court and all parties informed of any 18 change of address by filing a separate paper captioned “Notice of Change of Address.” He must 19 comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal 20 of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 21 IT IS SO ORDERED. 22 DATED: _______________ 23 RONALD M. WHYTE United States District Judge 24 25 26 27 28 Order Granting Petitioner’s Request to Dismiss Unexhausted Claim; Order To Show Cause G:\PRO-SE\SJ.Rmw\HC.12\Phongboupha025osc2.wpd 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GERRY PHONGBOUPHA, Case Number: CV12-01025 RMW Plaintiff, CERTIFICATE OF SERVICE v. A HEDGPETH et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 3, 2012, 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. Gerry GP Phongboupha G-29087 Salinas Valley State Prison PO Box 1050 Soledad, CA 93960 Dated: December 3, 2012 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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