Roberto Francisco Mendoza v. Kim Holland

Filing 10

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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2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA Petitioner, a state prisoner proceeding prose, seeks a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. Petitioner has paid the filing fee. For the reasons that follow, the court orders 18 respondent to show cause why the petition should not be granted. 19 DISCUSSION 20 A. Standard ofReview 21 This court may entertain a petition for a writ of habeas corpus "in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose 24 v. Hodges, 423 U.S. 19, 21 (1975). 25 A district court shall "award the writ or issue an order directing the respondent to show 26 cause why the writ should not be granted, unless it appears from the application that the 27 applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is 28 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 2 incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 3 1990)(quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). 4 B. 5 Petitioner's Claims Petitioner claims that: (1.) his pre-trial statements were improperly admitted, in violation 6 of Miranda v. Arizona, 384 U.S. 436 (1966), and the prosecution failed to produce transcripts, in 7 violation of Brady v. Maryland, 373 U.S. 83, 87 (1963); (2) trial counsel rendered ineffective 8 assistance by failing to investigate petitioner's Miranda claim; (3) petitioner was denied a 9 meaningful opportunity to present a defense when the prosecution failed to disclose its intent to 10 call an expert witness; (4) appellate counsel rendered ineffective assistance by failing to raise 11 Claims 1-3 on appeal; (5) CALCRIM No. 1110 negated a necessary element from the crime of 12 committing a lewd or lascivious act; (6) the trial court failed to sua sponte instruct the jury that 13 Officer Meroney's testimony on Child Sexual Abuse Accommodation Syndrome could not be 14 used to determine whether the victim's molestation claims were true, and trial counsel was 15 ineffective for failing to request that instruction; and (7) the cumulative effect of the errors in 16 Claims 5 and 6 violated petitioner's right to due process. The court orders respondent to show 17 cause why the petition should not be granted as to these claims. 18 19 CONCLUSION 1. The Clerk shall serve by mail a copy of this order and the petition and all 20 attachments thereto (docket nos. 1 and 2) upon the respondent and the respondent's attorney, the 21 Attorney General ofthe State of California. The Clerk shall also serve a copy ofthis order on 22 petitioner. 23 2. Respondent shall file with the court and serve on petitioner, within sixty days of 24 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing 25 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 26 Respondent shall file with the answer and serve on petitioner a copy of all portions of the 27 underlying state criminal record that have been transcribed previously and that are relevant to a 28 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 2 answer, he shall do so by filing a traverse with the court and serving it on respondent within 2 thirty days of the date the answer is filed. 3 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 4 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 5 2254 Cases within sixty days of the date this order is filed. If respondent files such a motion, 6 petitioner shall file with the court and serve on respondent an opposition or statement of non- 7 opposition within twenty-eight days of the date the motion is filed, and respondent shall file 8 with the court and serve on petitioner a reply within fourteen days of the date any opposition is 9 filed. 10 4. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that 11 all communications with the court must be served on respondent by mailing a true copy ofthe 12 document to respondent's counsel. Petitioner must keep the court and all parties informed of any 13 change of address by filing a separate paper captioned "Notice ofChange of Address." He must 14 comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal 15 ofthis action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 16 17 IT IS SO ORDERED. DATED: LU~li-~ 3/ g/20 I(p 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 Order to Show Cause P:\PRO-SE\LHK\HC.l5\Mendoza620osc. wpd 3

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