Rego v. Sherman
Filing
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ORDER TO SHOW CAUSE. Signed by Judge Lucy Koh on 1/17/2014. (lhklc2, COURT STAFF) (Filed on 1/17/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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TARVEY REGO,
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Plaintiff,
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v.
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STU SHERMAN, Warden, California Substance )
Abuse Treatment Facility and State Prison )
Corcoran
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Defendant.
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Case No.: 14-CV-00187
ORDER TO SHOW CAUSE
Petitioner Tarvey Rego (“Petitioner”), a state prisoner, filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for first degree
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murder. ECF No. 1 (“Petition”). The Court hereby ORDERS Respondent Stu Sherman
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(“Respondent”) to show cause why a writ of habeas corpus should not be granted.
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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
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Case No.: 14-CV-0187
ORDER TO SHOW CAUSE
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the respondent to show cause why the writ should not be granted, unless it appears from the
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application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
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B.
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As grounds for habeas relief, Petitioner first claims that he was denied his right to effective
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assistance of counsel by the failure of his attorney to present exonerating evidence and to object to
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the prosecutor’s “fallacious theory” that he could be guilty of felony murder on a theory of aiding
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and abetting an attempted robbery if he aided an attempted robber to escape the scene of the
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attempted robbery, even though the attempted robber was not in possession of stolen property. Id.
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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
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presentation of evidence and argument he knew to be false and misleading. Id. at 106. Third, he
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claims he was denied a fair trial when the state court denied his motion to bifurcate the “gang”
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enhancement allegation and overruled his objection to highly prejudicial evidence. Id. at 111.
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Fourth, he claims his right to due process was violated by the state court’s failure to instruct on
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voluntary manslaughter as statutorily defined and to instruct on the principle that provocation can
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reduce first degree murder to second degree murder. Id. at 113. Fifth, he claims there was
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insufficient evidence that he committed or aided and abetted the commission of attempted robbery
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and thus the jury unreasonably found him guilty of first degree murder. Id. at 122. Sixth, he argues
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there was insufficient evidence of deliberation and premeditation and thus his conviction violated
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due process. Id. at 125. Last, he claims he was denied due process by the state court of appeal’s
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misreading of the record and distortion of the facts. Id. at 130. Liberally construed, Petitioner’s
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claims are sufficient to require a response. The Court thus orders Respondent to show cause why
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the petition should not be granted.
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II.
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CONCLUSION
1.
The Clerk shall serve by mail a copy of this order, Petitioner’s Petition (ECF No. 1)
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and all attachments thereto upon the Respondents. The Clerk shall also serve a copy of this order
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on Petitioner.
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Case No.: 14-CV-0187
ORDER TO SHOW CAUSE
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Respondent shall file with the Court and serve on Petitioner, within ninety 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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Respondent may file a motion to dismiss on procedural grounds in lieu of an
United States District Court
For the Northern District of California
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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 ninety 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 thirty days of the date the motion is filed, and Respondent shall file with the
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Court and serve on Petitioner a reply within fifteen days of the date any opposition is filed.
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4.
It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that all
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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 of
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this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
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Dated: January 17, 2014
_________________________________
LUCY H. KOH
United States District Judge
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Case No.: 14-CV-0187
ORDER TO SHOW CAUSE
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