Dominguez v. Cate

Filing 9

ORDER TO SHOW CAUSE. Habeas Answer due by 4/22/2013. Signed by Judge Ronald M. Whyte on 2/21/13. (jg, COURT STAFF) (Filed on 2/21/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FRANCISCO DOMINGUEZ,
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Petitioner,
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vs.
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HEIDI M. LACKNER, Warden,

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Respondent.

No. C 12-5896 RMW (PR)
ORDER TO SHOW CAUSE

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Petitioner has paid the filing fee. The court orders respondent to show cause

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why a writ of habeas corpus should not be granted.

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BACKGROUND

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According to the petition, petitioner was convicted in Contra Costa County Superior

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Court for several counts of lewd or lascivious acts with a child, and sentenced to a term of

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twenty-four years. Petitioner filed the underlying petition on November 19, 2012.

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DISCUSSION
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Standard of Review
This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a state court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
Order to Show Cause
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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court 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 the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
As grounds for federal habeas relief, petitioner alleges that: (1) he was denied the right

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to represent himself; (2) his right to a speedy trial was violated; (3) counsel had a conflict of

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interest; and (4) the prosecutor failed to turn over exculpatory evidence. Liberally construed, the

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court orders respondent to show cause why the petition should not be granted.

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Petitioner also asserts that he is actually innocent, and argues that any procedural default

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should not be used against him. However, “[c]laims of actual innocence based on newly

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discovered evidence have never been held to state a ground for federal habeas relief [in a

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noncapital proceeding] absent an independent constitutional violation occurring in the

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underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). Thus,

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because the United States Supreme Court has never held that an “actual innocence” claim in a

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non-capital case is a cognizable federal claim, any state court decision denying Petitioner’s

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factual innocence claim cannot be contrary to, or an unreasonable application of, clearly

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established United States Supreme Court law. See Carey v. Musladin, 549 U.S. 70, 77 (2006);

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see also District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71 (2009)

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(noting that it remains an “open question” whether a freestanding claim of actual innocence

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exists as an avenue for relief for habeas corpus petitioners). Further, Petitioner’s claim does not

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meet the “extraordinarily high” bar of affirmatively proving his innocence. Carriger v. Stewart,

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132 F.3d 463, 476 (9th Cir. 1997) (recognizing that a habeas petitioner asserting a freestanding

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claim of actual innocence must make a “stronger showing than [the] insufficiency of the

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evidence to convict” showing adopted by the Supreme Court in Jackson v. Virginia, 443 U.S.

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307, 319 (1979)). He appears to challenge the weight of the evidence rather than assert his

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factual innocence. Thus, this claim is DISMISSED.

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Petitioner finally claims that the state courts erred in failing to hold an evidentiary
Order to Show Cause
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hearing. However, federal habeas relief is unavailable merely because “something in the state

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proceedings was contrary to general notions of fairness or violated some federal procedural right

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unless the Constitution or other federal law specifically protects against the alleged unfairness or

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guarantees the procedural right in state court.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th

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Cir. 1985). It also is unavailable for alleged error in the state post-conviction review process,

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Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). Thus, this claim is DISMISSED.

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CONCLUSION

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1.

The clerk shall serve by mail a copy of this order and the petition (docket no. 1)

and all attachments thereto upon the respondent and the respondent’s attorney, the Attorney

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General of the State of California. The clerk shall also serve a copy of this order on the

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petitioner.

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2.

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

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the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition.

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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 the date the answer is filed.

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3.

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

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

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2254 Cases within sixty days of the date this order is filed. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or statement of non-

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opposition within twenty-eight days of the date the motion is filed, and respondent shall file

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with the court and serve on petitioner a reply within fourteen days of the date any opposition is

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filed.

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4.

It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that

all communications with the court must be served on respondent by mailing a true copy of the
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document to respondent’s counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must

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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
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

FRANCISCO DOMINGUEZ,

Case Number: CV12-05896 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
HEIDI M. LACKNER, Warden
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 February 21, 2013, 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.

Francisco Dominguez F-22191
Valley State Prison (VSP)
21633 Avenue 24
PO Box 92
Chowchilla, CA 93610-0096
Dated: February 21, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk