Roberto Francisco Mendoza v. Kim Holland
Filing
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ORDER TO SHOW CAUSE. Answer due by 5/9/2016. Signed by Judge Hon. Lucy H. Koh on 3/8/2016. **ORDER INCLUDES INSTRUCTIONS FOR SERVICE ON THE ATTORNEY GENERAL**(sms, COURT STAFF) (Filed on 3/9/2016) (Additional attachment(s) added on 3/9/2016: # 1 Certificate/Proof of Service) (sms, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
Petitioner, a state prisoner proceeding prose, 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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DISCUSSION
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A.
Standard ofReview
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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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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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Order to Show Cause
P:\PRO-SE\LHK\HC.l5\Mendoza620osc. wpd
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.) his pre-trial statements were improperly admitted, in violation
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of Miranda v. Arizona, 384 U.S. 436 (1966), and the prosecution failed to produce transcripts, in
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violation of Brady v. Maryland, 373 U.S. 83, 87 (1963); (2) trial counsel rendered ineffective
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assistance by failing to investigate petitioner's Miranda claim; (3) petitioner was denied a
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meaningful opportunity to present a defense when the prosecution failed to disclose its intent to
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call an expert witness; (4) appellate counsel rendered ineffective assistance by failing to raise
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Claims 1-3 on appeal; (5) CALCRIM No. 1110 negated a necessary element from the crime of
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committing a lewd or lascivious act; (6) the trial court failed to sua sponte instruct the jury that
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Officer Meroney's testimony on Child Sexual Abuse Accommodation Syndrome could not be
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used to determine whether the victim's molestation claims were true, and trial counsel was
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ineffective for failing to request that instruction; and (7) the cumulative effect of the errors in
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Claims 5 and 6 violated petitioner's right to due process. The court orders respondent to show
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cause why the petition should not be granted as to these claims.
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CONCLUSION
1.
The Clerk shall serve by mail a copy of this order and the petition and all
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attachments thereto (docket nos. 1 and 2) upon the respondent and the respondent's attorney, the
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Attorney General ofthe State of California. The Clerk shall also serve a copy ofthis 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
P:\PRO-SE\LHK\HC.l5\Mendoza620osc.wpd
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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 ofthe
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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 ofChange 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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ofthis action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
DATED:
LU~li-~
3/ g/20 I(p
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United States District Judge
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Order to Show Cause
P:\PRO-SE\LHK\HC.l5\Mendoza620osc. wpd
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