Jose Bautista v. R. Diaz

Filing 16

ORDER OF SERVICE. Signed by Judge Nathanael Cousins on 9/1/2016. (lmh, COURT STAFF) (Filed on 9/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE BAUTISTA,
Plaintiff,

United States District Court
Northern District of California

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ORDER OF SERVICE

v.

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Case No. 16-cv-03174 NC

R. DIAZ,
Defendant.

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Petitioner Jose Bautista, a state prisoner incarcerated at High Desert State Prison,

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has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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I.

BACKGROUND
Petitioner was convicted by a jury of robbery with a firearm enhancement in the

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Santa Clara County Superior Court of the State of California. On May 23, 2013, he was

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sentenced to two years for robbery and a consecutive 20 years for a firearm enhancement

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in state prison. Petitioner unsuccessfully appealed his conviction to the California Court of

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Appeal and the Supreme Court of California, which on June 10, 2015, denied review of a

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petition allegedly raising the same claims raised here.

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II.

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DISCUSSION
A.

Legal Standard

This court may entertain a petition for writ of habeas corpus “in behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in
Case No. 16-cv-03174 NC

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant

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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

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(9th Cir. 1990).

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B.

Petitioner’s Legal Claims

Petitioner seeks federal habeas corpus relief by raising the following claim:

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ineffective assistance of counsel at the sentencing phase. Liberally construed, the claims

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United States District Court
Northern District of California

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appear colorable under 28 U.S.C. § 2254 and merit an answer from respondent.

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III. CONCLUSION

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For the foregoing reasons and for good cause shown:
1. The clerk shall serve by certified mail a copy of this order and the

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petition and all attachments thereto upon respondent. The clerk shall also

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serve a copy of this order on petitioner.

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2. Respondent shall file with the court and serve on petitioner, within 60

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days of the date of this order, an answer showing why a writ of habeas

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corpus should not be issued (or -an answer conforming in all respects to

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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a
writ of habeas corpus should not be issued). Respondent shall file with
the answer and serve on petitioner a copy of all portions of the
administrative record that are relevant to a determination of the issues
presented by the petition.
3. If the petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his
receipt of the answer.

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Case No. 16-cv-03174 NC

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4. Respondent shall file a consent or declination to magistrate judge
jurisdiction within 14 days.

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IT IS SO ORDERED.

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Dated: September 1, 2016

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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United States District Court
Northern District of California

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Case No. 16-cv-03174 NC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE BAUTISTA,

Case No. 16-cv-03174-NC

Plaintiff,
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v.

CONSENT OR DECLINATION TO
MAGISTRATE JUDGE
JURISDICTION

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R. DIAZ,
Defendant.

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INSTRUCTIONS: Please indicate below by checking one of the two boxes whether
you (if you are the party) or the party you represent (if you are an attorney in the case)

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United States District Court
Northern District of California

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choose(s) to consent or decline magistrate judge jurisdiction in this matter. Sign this form

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below your selection.

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( ) Consent to Magistrate Judge Jurisdiction

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In accordance with the provisions of 28 U.S.C. § 636(c), I voluntarily consent to

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have a United States magistrate judge conduct all further proceedings in this case,

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including trial and entry of final judgment. I understand that appeal from the judgment

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shall be taken directly to the United States Court of Appeals for the Ninth Circuit.
OR

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( ) Decline Magistrate Judge Jurisdiction

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In accordance with the provisions of 28 U.S.C. § 636(c), I decline to have a United

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States magistrate judge conduct all further proceedings in this case and I hereby request

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that this case be reassigned to a United States district judge.

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DATE:

NAME:
COUNSEL FOR:
(OR “PRO SE:)

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__________________________________
Signature

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Case No. 16-cv-03174 NC

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