Rego v. Sherman

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge Lucy Koh on 1/17/2014. (lhklc2, COURT STAFF) (Filed on 1/17/2014)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 SAN JOSE DIVISION 11 12 13 14 15 16 17 TARVEY REGO, ) ) Plaintiff, ) v. ) ) STU SHERMAN, Warden, California Substance ) Abuse Treatment Facility and State Prison ) Corcoran ) ) Defendant. ) ) Case No.: 14-CV-00187 ORDER TO SHOW CAUSE Petitioner Tarvey Rego (“Petitioner”), a state prisoner, filed a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for first degree 19 murder. ECF No. 1 (“Petition”). The Court hereby ORDERS Respondent Stu Sherman 20 (“Respondent”) to show cause why a writ of habeas corpus should not be granted. 21 22 23 24 25 26 27 I. DISCUSSION A. Standard of Review This Court may entertain a petition for writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing 28 1 Case No.: 14-CV-0187 ORDER TO SHOW CAUSE 1 the respondent to show cause why the writ should not be granted, unless it appears from the 2 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 3 B. 4 As grounds for habeas relief, Petitioner first claims that he was denied his right to effective 5 assistance of counsel by the failure of his attorney to present exonerating evidence and to object to 6 the prosecutor’s “fallacious theory” that he could be guilty of felony murder on a theory of aiding 7 and abetting an attempted robbery if he aided an attempted robber to escape the scene of the 8 attempted robbery, even though the attempted robber was not in possession of stolen property. Id. 9 at 81, 104. Second, he claims he was denied his right to due process by the prosecutor’s Petitioner’s Claims United States District Court For the Northern District of California 10 presentation of evidence and argument he knew to be false and misleading. Id. at 106. Third, he 11 claims he was denied a fair trial when the state court denied his motion to bifurcate the “gang” 12 enhancement allegation and overruled his objection to highly prejudicial evidence. Id. at 111. 13 Fourth, he claims his right to due process was violated by the state court’s failure to instruct on 14 voluntary manslaughter as statutorily defined and to instruct on the principle that provocation can 15 reduce first degree murder to second degree murder. Id. at 113. Fifth, he claims there was 16 insufficient evidence that he committed or aided and abetted the commission of attempted robbery 17 and thus the jury unreasonably found him guilty of first degree murder. Id. at 122. Sixth, he argues 18 there was insufficient evidence of deliberation and premeditation and thus his conviction violated 19 due process. Id. at 125. Last, he claims he was denied due process by the state court of appeal’s 20 misreading of the record and distortion of the facts. Id. at 130. Liberally construed, Petitioner’s 21 claims are sufficient to require a response. The Court thus orders Respondent to show cause why 22 the petition should not be granted. 23 II. 24 CONCLUSION 1. The Clerk shall serve by mail a copy of this order, Petitioner’s Petition (ECF No. 1) 25 and all attachments thereto upon the Respondents. The Clerk shall also serve a copy of this order 26 on Petitioner. 27 28 2 Case No.: 14-CV-0187 ORDER TO SHOW CAUSE 1 2. Respondent shall file with the Court and serve on Petitioner, within ninety days of 2 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing 3 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 4 Respondent shall file with the answer and serve on Petitioner a copy of all portions of the 5 underlying state criminal record that have been transcribed previously and that are relevant to a 6 determination of the issues presented by the petition. 7 8 9 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. 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an United States District Court For the Northern District of California 10 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 11 2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion, 12 Petitioner shall file with the Court and serve on Respondent an opposition or statement of non- 13 opposition within thirty days of the date the motion is filed, and Respondent shall file with the 14 Court and serve on Petitioner a reply within fifteen days of the date any opposition is filed. 15 4. It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that all 16 communications with the Court must be served on Respondent by mailing a true copy of the 17 document to Respondent’s counsel. Petitioner must keep the Court and all parties informed of any 18 change of address by filing a separate paper captioned “Notice of Change of Address.” He must 19 comply with the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of 20 this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 21 IT IS SO ORDERED. 22 Dated: January 17, 2014 _________________________________ LUCY H. KOH United States District Judge 23 24 25 26 27 28 3 Case No.: 14-CV-0187 ORDER TO SHOW CAUSE

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?