Dominguez v. Brazelton
Filing
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ORDER TO SHOW CAUSE Habeas Answer due by 6/3/2013. Dispositive Motion due by 6/3/2013.. Signed by Judge Lucy H. Koh on 4/3/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/4/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RENALDO D. DOMINGUEZ,
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Petitioner,
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vs.
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WARDEN P.D. BRAZELTON,
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Respondent.
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____________________________________)
No. C 12-6288 LHK (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. For the reasons that follow, the Court
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orders Respondent to show cause why the petition should not be granted.
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BACKGROUND
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The instant petition was filed on December 11, 2012. Petitioner challenges his criminal
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sentence imposed by the Napa County Superior Court on September 4, 2007. In 2009, the
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California Court of Appeal affirmed the judgment and the California Supreme Court denied the
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petition for review.
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DISCUSSION
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A.
Standard of Review
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This Court may entertain a petition for a 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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Order To Show Cause
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
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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. Summary dismissal is
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appropriate only where the allegations in the petition are vague or conclusory, palpably
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incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
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1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
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B.
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Petitioner’s Claims
Petitioner claims that: (1) the trial court violated his right to a jury trial by removing
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Juror #9 during deliberations; (2) Juror Jane Doe committed misconduct when she lied during
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voir dire that she did not know Petitioner, and in fact, disliked him because of his sexual
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orientation; and (3) counsel rendered ineffective assistance for failing to challenge Juror Jane
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Doe when Petitioner informed him of the juror’s bias. Liberally construed, these claims are
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cognizable for federal habeas review. The Court orders Respondent to show cause why the
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petition should not be granted as to the above issues.
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CONCLUSION
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The Clerk shall serve by mail a copy of this order and the petition and all
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attachments thereto (docket no. 1) upon the Respondent and the Respondent’s attorney, the
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Attorney General of the State of California. The Clerk shall also serve a copy of this order on
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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. If Petitioner wishes to respond to the
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answer, he shall do so by filing a traverse with the Court and serving it on Respondent within
Order To Show Cause
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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
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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
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any change of address by filing a separate paper captioned “Notice of Change of Address.” He
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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the
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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure
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41(b).
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IT IS SO ORDERED.
DATED:
4/3/13
LUCY H. KOH
United States District Judge
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Order To Show Cause
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