Maloof v. Chavez et al

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 10/9/2012. Signed by Judge Edward J. Davila on 8/3/2012. (ecg, COURT STAFF) (Filed on 8/7/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 JOSEPH ALLEN MALOOF, Petitioner, 12 13 vs. 14 FRANK X. CHAVEZ, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. C 12-01100 EJD (PR) ORDER TO SHOW CAUSE 17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. 20 Petitioner has paid the filing fee. (See Docket No. 1.) 21 BACKGROUND 22 23 According to the petition, Petitioner pleaded guilty in Santa Clara County 24 Superior Court to embezzlement, failure to provide travel services or make refunds, 25 insufficient funds check, unlawful encumbrance of a trust account by a “Seller of 26 Travel,” and money laundering. (Pet. at 2.) Petitioner was sentenced on December 27 10, 2008, to thirteen years in state prison. (Id.) 28 Petitioner appealed his conviction, and the state appellate court affirmed. (Id. Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\01100Maloof_osc.wpd 1 at 3.) The state high court denied review. (Id.) Petitioner filed the instant federal habeas petition on March 5, 2012. 2 3 DISCUSSION 4 5 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 6 7 person in custody pursuant to the judgment of a State court only on the ground that 8 he is in custody in violation of the Constitution or laws or treaties of the United 9 States.” 28 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to show 11 For the Northern District of California United States District Court 10 cause why the writ should not be granted, unless it appears from the application that 12 the applicant or person detained is not entitled thereto.” Id. § 2243. 13 B. 14 Legal Claims Petitioner claims the following as grounds for federal habeas relief: (1) the 15 court considered dismissed charges in imposing consecutive sentences without 16 obtaining a waiver in violation of due process; (2) ineffective assistance of counsel 17 for failing to object to sentencing factors; (3) the trial court abused its discretion in 18 sentencing; (4) the trial court erred in using the same facts to impose an enhanced 19 sentence; and (5) ineffective assistance of counsel for failing to object to the trial 20 court’s use of the same facts in sentencing. Liberally construed, his claims are 21 cognizable under § 2254 and merit an answer from Respondent. 22 CONCLUSION 23 24 For the foregoing reasons and for good cause shown, 25 1. The Clerk shall serve by certified mail a copy of this order and the 26 petition and all attachments thereto on Respondent and Respondent’s attorney, the 27 Attorney General of the State of California. The Clerk also shall serve a copy of this 28 order on Petitioner. Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\01100Maloof_osc.wpd 2 1 2. Respondent shall file with the court and serve on petitioner, within 2 sixty (60) days of the issuance of this order, an answer conforming in all respects to 3 Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of 4 habeas corpus should not be issued. Respondent shall file with the answer and serve 5 on Petitioner a copy of all portions of the state trial record that have been transcribed 6 previously and that are relevant to a determination of the issues presented by the 7 petition. 8 If Petitioner wishes to respond to the answer, he shall do so by filing a 9 traverse with the Court and serving it on Respondent within thirty (30) days of his 11 For the Northern District of California United States District Court 10 receipt of the answer. 3. Respondent may file a motion to dismiss on procedural grounds in lieu 12 of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 13 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall 14 file with the Court and serve on Respondent an opposition or statement of non- 15 opposition within thirty (30) days of receipt of the motion, and Respondent shall 16 file with the court and serve on Petitioner a reply within fifteen (15) days of receipt 17 of any opposition. 18 4. Petitioner is reminded that all communications with the court must be 19 served on Respondent by mailing a true copy of the document to Respondent’s 20 counsel. Petitioner must also keep the Court and all parties informed of any change 21 of address. 22 23 DATED: 8/3/2012 EDWARD J. DAVILA United States District Judge 24 25 26 27 28 Order to Show Cause G:\PRO-SE\SJ.EJD\HC.12\01100Maloof_osc.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSEPH ALLEN MALOOF, Case Number: CV12-01100 EJD Petitioner, CERTIFICATE OF SERVICE v. FRANK X. CHAVEZ, 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. 8/7/2012 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. Joseph Allen Maloof G45298 Sierra Conservation Center 5100 O’Byrnes Ferry Road Jamestown, CA 95327 Dated: 8/7/2012 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk

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