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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DIEGO BURGOS,
Plaintiff,

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Re: ECF 1

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United States District Court
Northern District of California

ORDER TO SHOW CAUSE

v.

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Case No. 17-cv-06102-NC

MICHAEL SEXTON,
Defendant.

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Petitioner Diego Burgos, a state prisoner, seeks a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Petitioner has paid the required filing fee and consented to magistrate

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judge jurisdiction. ECF 1, 3. For the reasons below, the Court ORDERS Respondent

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Michael Sexton to show cause why the petition should not be granted.

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I.

BACKGROUND
Petitioner was convicted of abusing and killing a child, C. M. According to the

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petition, after a jury trial in Monterey County Superior Court, Petitioner was convicted of

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second-degree murder, assault on a child resulting in death, corporal injury to a child, and

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child endangerment. On January 9, 2013, the trial court sentenced Petitioner to 37 years to

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life in prison. The California Court of Appeal affirmed the conviction on April 18, 2016,

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and the California Supreme Court denied a petition for review on July 27, 2016. Petitioner

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filed this petition for writ of habeas corpus on October 25, 2017.

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II.

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DISCUSSION
A.

Standard of Review

This court may entertain a petition for a writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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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); Rose 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

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

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the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary

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dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490,

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491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

Petitioner’s Claims

United States District Court
Northern District of California

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Petitioner claims that: (1) the trial court’s admission of Petitioner’s statement to the

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police, taken after Petitioner allegedly invoked his right to remain silent, denied Petitioner

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his Fifth Amendment right against self-incrimination; (2) the trial court’s refusal to grant a

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mistrial or admonish the jury regarding Aracely M.’s testimony about her fear that

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Petitioner sexually assaulted C.M. denied Petitioner his Fourteenth Amendment right to

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due process; (3) the admission of a photograph showing the infant victim C.M. laying in a

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hospital bed on life support, with a rosary draped across his body, rendered Petitioner’s

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trial fundamentally unfair in violation of his Fourteenth Amendment right to due process;

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(4) the trial court erred in instructing the jury on CALCRIM No. 361; and (5) the

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cumulative effect of the state court’s errors denied Petitioner his Fourteenth Amendment

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right to due process.

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These claims, argued in detail and with reference to Supreme Court law and the

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factual record, are not vague or conclusory, palpably incredible, or patently frivolous or

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false. Thus, summary dismissal is not appropriate, and a response to the petition is

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warranted. The Court therefore ORDERS Respondent to show cause why the petition

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should not be granted.

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III. CONCLUSION

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Respondent is directed to file with the court and serve on Petitioner, within sixty
Case No. 17-cv-06102-NC

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(60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be granted. Respondent must file with the answer and serve on Petitioner a copy

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of all portions of the state trial record that have been transcribed previously and that are

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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

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the Court and serving it on Respondent within thirty (30) days of the date the answer is

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filed.

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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

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United States District Court
Northern District of California

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the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner

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must file with the Court and serve on Respondent an opposition or statement of non-

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opposition within twenty-eight (28) days of the date the motion is filed, and Respondent

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must file with the court and serve on Petitioner a reply within fourteen (14) days of the

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date any opposition is filed.

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The Clerk of the Court is directed to serve a magistrate judge jurisdiction consent

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form, a copy of this order, and the petition, and all attachments thereto, on Respondent and

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Respondent’s attorney, the Attorney General of the State of California. Respondent must

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file his magistrate judge jurisdiction consent form no later than thirty (30) days from the

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filing date of this order.

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Petitioner is reminded that all communications with the Court must be served on

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Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner

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must keep the Court informed of any change of address and must comply with the Court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: March 23, 2018

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Case No. 17-cv-06102-NC

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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