Burgos v. Sexton
Filing
4
ORDER TO SHOW CAUSE. Signed by Judge Nathanael Cousins on 3/23/2018. (lmh, COURT STAFF) (Filed on 3/23/2018)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
DIEGO BURGOS,
Plaintiff,
9
Re: ECF 1
11
United States District Court
Northern District of California
ORDER TO SHOW CAUSE
v.
10
Case No. 17-cv-06102-NC
MICHAEL SEXTON,
Defendant.
12
13
Petitioner Diego Burgos, a state prisoner, seeks a writ of habeas corpus pursuant to
14
15
28 U.S.C. § 2254. Petitioner has paid the required filing fee and consented to magistrate
16
judge jurisdiction. ECF 1, 3. For the reasons below, the Court ORDERS Respondent
17
Michael Sexton to show cause why the petition should not be granted.
18
I.
BACKGROUND
Petitioner was convicted of abusing and killing a child, C. M. According to the
19
20
petition, after a jury trial in Monterey County Superior Court, Petitioner was convicted of
21
second-degree murder, assault on a child resulting in death, corporal injury to a child, and
22
child endangerment. On January 9, 2013, the trial court sentenced Petitioner to 37 years to
23
life in prison. The California Court of Appeal affirmed the conviction on April 18, 2016,
24
and the California Supreme Court denied a petition for review on July 27, 2016. Petitioner
25
filed this petition for writ of habeas corpus on October 25, 2017.
26
II.
27
28
DISCUSSION
A.
Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a person
1
in custody pursuant to the judgment of a State court only on the ground that he is in
2
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
3
§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
4
A district court shall “award the writ or issue an order directing the respondent to
5
show cause why the writ should not be granted, unless it appears from the application that
6
the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary
7
dismissal is appropriate only where the allegations in the petition are vague or conclusory,
8
palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490,
9
491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
10
B.
Petitioner’s Claims
United States District Court
Northern District of California
11
Petitioner claims that: (1) the trial court’s admission of Petitioner’s statement to the
12
police, taken after Petitioner allegedly invoked his right to remain silent, denied Petitioner
13
his Fifth Amendment right against self-incrimination; (2) the trial court’s refusal to grant a
14
mistrial or admonish the jury regarding Aracely M.’s testimony about her fear that
15
Petitioner sexually assaulted C.M. denied Petitioner his Fourteenth Amendment right to
16
due process; (3) the admission of a photograph showing the infant victim C.M. laying in a
17
hospital bed on life support, with a rosary draped across his body, rendered Petitioner’s
18
trial fundamentally unfair in violation of his Fourteenth Amendment right to due process;
19
(4) the trial court erred in instructing the jury on CALCRIM No. 361; and (5) the
20
cumulative effect of the state court’s errors denied Petitioner his Fourteenth Amendment
21
right to due process.
22
These claims, argued in detail and with reference to Supreme Court law and the
23
factual record, are not vague or conclusory, palpably incredible, or patently frivolous or
24
false. Thus, summary dismissal is not appropriate, and a response to the petition is
25
warranted. The Court therefore ORDERS Respondent to show cause why the petition
26
should not be granted.
27
III. CONCLUSION
28
Respondent is directed to file with the court and serve on Petitioner, within sixty
Case No. 17-cv-06102-NC
2
1
(60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of
2
the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus
3
should not be granted. Respondent must file with the answer and serve on Petitioner a copy
4
of all portions of the state trial record that have been transcribed previously and that are
5
relevant to a determination of the issues presented by the petition.
If Petitioner wishes to respond to the answer, he must do so by filing a traverse with
6
7
the Court and serving it on Respondent within thirty (30) days of the date the answer is
8
filed.
9
In lieu of an answer, Respondent may file, within sixty (60) days, a motion to
dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of
11
United States District Court
Northern District of California
10
the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner
12
must file with the Court and serve on Respondent an opposition or statement of non-
13
opposition within twenty-eight (28) days of the date the motion is filed, and Respondent
14
must file with the court and serve on Petitioner a reply within fourteen (14) days of the
15
date any opposition is filed.
16
The Clerk of the Court is directed to serve a magistrate judge jurisdiction consent
17
form, a copy of this order, and the petition, and all attachments thereto, on Respondent and
18
Respondent’s attorney, the Attorney General of the State of California. Respondent must
19
file his magistrate judge jurisdiction consent form no later than thirty (30) days from the
20
filing date of this order.
21
Petitioner is reminded that all communications with the Court must be served on
22
Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner
23
must keep the Court informed of any change of address and must comply with the Court’s
24
orders in a timely fashion. Failure to do so may result in the dismissal of this action for
25
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
26
27
IT IS SO ORDERED.
Dated: March 23, 2018
28
Case No. 17-cv-06102-NC
_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
3
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?