Cardenas v. Swarthout

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on 12/3/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 12/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JONATHAN CARDENAS,
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Petitioner,
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vs.
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GARY SWARTHOUT, Warden,
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Respondent.
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____________________________________)

No. C 13-4199 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 orders
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respondent to show cause why the petition should not be granted.
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BACKGROUND
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According to the petition, on August 4, 2010, petitioner was sentenced to a term of 1621
years to life after being convicted of second degree murder and use of a deadly weapon in Santa
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Cruz County Superior Court. In 2012, the California Court of Appeal affirmed, and the
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California Supreme Court denied the petition for review. Petitioner filed the instant federal
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petition on September 10, 2013.
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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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Order to Show Cause
G:\PRO-SE\LHK\HC.13\Cardenas199osc.wpd

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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

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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.

Petitioner’s Claims
Petitioner raises the following claims in his petition: (1) the trial court improperly

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admitted evidence regarding gangs and petitioner’s prior statements about gang culture even

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though there was no evidence that petitioner’s offense was gang-related; (2) the trial court erred

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in refusing petitioner’s request to modify CALCRIM Nos. 371 and 372 to instruct the jury that

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“consciousness of guilt may not be considered in determining the degree of defendant’s guilt”;

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and (3) the cumulative errors prejudiced petitioner.

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

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CONCLUSION

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1.

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
Order to Show Cause
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answer, he shall do so by filing a traverse with the court and serving it on respondent within

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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 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:

12/3/13
LUCY H. KOH
United States District Judge

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Order to Show Cause
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