Merino v. Cate et al

Filing 3

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 12/3/2012. Signed by Judge Edward J. Davila on 10/2/2012. (ecg, COURT STAFF) (Filed on 10/4/2012)

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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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ANTHONY A. MERINO,
Petitioner,

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vs.

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MATHEW CATE, et al.,
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Respondents.
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No. C 12-03277 EJD (PR)
ORDER TO SHOW CAUSE

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Petitioner, a state parolee 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 was found guilty by a jury in San

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Francisco County Superior Court of committing a lewd and lascivious act, false

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imprisonment, indecent exposure, and lewd conduct in public. (Pet. at 2.) Petitioner

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was sentenced on May 20, 2009, to two years in state prison. (Id.)

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Petitioner appealed his conviction, and the state appellate court affirmed. (Id.
at 3.) The state high court denied review. (Id.)
Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.12\03277Merino_osc.wpd

Petitioner filed the instant federal habeas petition on June 25, 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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cause why the writ should not be granted, unless it appears from the application that

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For the Northern District of California

United States District Court

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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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trial court erred in admitting evidence to show Petitioner’s propensity for

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committing sex offense, violating his right to due process and fair trial; (2)

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instructing the jury with CALCRIM 1191 violated Petitioner’s right to due proces

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because it permitted a conviction based on an uncharged misconduct found true by a

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preponderance of the evidence; and (3) Petitioner’s right to confrontation was

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violated where the DNA expert’s testimony was based upon the analysis of a non-

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testifying criminalist. Liberally construed, his claims are cognizable under § 2254

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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
G:\PRO-SE\SJ.EJD\HC.12\03277Merino_osc.wpd

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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.
3.

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:

10/2/2012

EDWARD J. DAVILA
United States District Judge

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Order to Show Cause
G:\PRO-SE\SJ.EJD\HC.12\03277Merino_osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ANTHONY A. MERINO,

Case Number: CV12-03277 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
MATHEW CATE, et al.,
Respondents.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
10/4/2012
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.

Anthony A. Merino
P. O. Box 15756
San Francisco, CA 94115
Dated:

10/4/2012
Richard W. Wieking, Clerk
/s/By: Elizabeth Garcia, Deputy Clerk