Maloof v. Chavez et al
Filing
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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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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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JOSEPH ALLEN MALOOF,
Petitioner,
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vs.
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FRANK X. CHAVEZ, Warden,
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Respondent.
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No. C 12-01100 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, Petitioner pleaded guilty in Santa Clara County
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Superior Court to embezzlement, failure to provide travel services or make refunds,
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insufficient funds check, unlawful encumbrance of a trust account by a “Seller of
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Travel,” and money laundering. (Pet. at 2.) Petitioner was sentenced on December
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10, 2008, to thirteen years in state prison. (Id.)
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Petitioner appealed his conviction, and the state appellate court affirmed. (Id.
Order to Show Cause
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at 3.) The state high court denied review. (Id.)
Petitioner filed the instant federal habeas petition on March 5, 2012.
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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
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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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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 claims the following as grounds for federal habeas relief: (1) the
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court considered dismissed charges in imposing consecutive sentences without
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obtaining a waiver in violation of due process; (2) ineffective assistance of counsel
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for failing to object to sentencing factors; (3) the trial court abused its discretion in
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sentencing; (4) the trial court erred in using the same facts to impose an enhanced
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sentence; and (5) ineffective assistance of counsel for failing to object to the trial
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court’s use of the same facts in sentencing. Liberally construed, his claims are
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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.
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.
Order to Show Cause
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2.
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.
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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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For the Northern District of California
United States District Court
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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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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:
8/3/2012
EDWARD J. DAVILA
United States District Judge
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Order to Show Cause
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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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