Neuhaus v. Peery

Filing 7

ORDER TO SHOW CAUSE. The Clerk of the Court shall serve respondent and respondent's attorney, the Attorney General of California. Habeas Answer or Dispositive Motion due by 1/12/2021. Signed by Judge Virginia K. DeMarchi on 11/13/2020. (vkdlc1S, COURT STAFF) (Filed on 11/17/2020)

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Case 5:20-cv-07385-VKD Document 7 Filed 11/17/20 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JASON SHANE NEUHAUS, Plaintiff, 9 10 United States District Court Northern District of California 11 12 13 Case No. 20-cv-07385-VKD ORDER TO SHOW CAUSE v. SUZANNE M. PEERY, Defendant. Re: Dkt. No. 1 Petitioner Jason Shane Neuhaus, a state prisoner, filed a petition for writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254, challenging his confinement at the California Correctional Center in 15 Susanville, California. According to his petition, following a jury trial in the Superior Court of 16 California for the County of Contra Costa, Mr. Neuhaus was sentenced to 109 years plus 157 17 years to life for, among other things, 10 counts of attempted murder of a peace officer (Cal. Penal 18 Code §§ 664/187(a)). Dkt. No. 1 at 1–2. In 2019, the California Court of Appeal affirmed the 19 conviction (except for one count of assault), and the California Supreme Court denied his petition 20 for review. Id. at 3. Mr. Neuhaus argues that the convictions for attempted murder of a peace 21 officer should be reversed for multiple reasons: (1) insufficient evidence showing that he 22 possessed a specific intent to kill; (2) instructional error on a “kill zone theory”; (3) prosecutorial 23 misconduct in misstating the applicable law; and (4) ineffective assistance of counsel in failing to 24 object to the instructional error and prosecutorial misconduct. Id. at 5. 25 26 These claims, when liberally construed, are cognizable and potentially meritorious. Good cause appearing, respondents are ordered to show cause why the petition should not be granted. 27 Accordingly, the Court orders as follows: 28 1. The Clerk of the Court shall serve respondent and respondent’s attorney, the Attorney Case 5:20-cv-07385-VKD Document 7 Filed 11/17/20 Page 2 of 2 1 General of California, with a copy of this Order to Show Cause, as well as the petition 2 for writ of habeas corpus and all attachments (Dkt. No. 1). 2. Respondent shall file with the court and serve on petitioner, within 60 days of the 4 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 5 Governing Section 2254 Cases and Habeas Local Rule 2254-6(b), showing cause why 6 a writ of habeas corpus should not be issued. Respondent shall file with the answer 7 and serve on petitioner a copy of all portions of the state trial record that have been 8 transcribed previously and that are relevant to a determination of the issues presented 9 by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a 10 traverse with the Court and serving it on respondent within 30 days of his receipt of the 11 United States District Court Northern District of California 3 answer. 12 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as 13 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 14 2254 Cases. If respondent files such a motion, petitioner shall file with the Court and 15 serve on respondent an opposition or statement of non-opposition within 28 days of 16 receipt of the motion, and respondent shall file with the court and serve on petitioner a 17 reply within 14 days of receipt of any opposition. 18 4. The parties are reminded that this matter has been randomly assigned to the 19 undersigned magistrate judge for all purposes. All parties who have not yet done so 20 shall file either a consent or declination to proceed before a magistrate judge. The 21 consent/declination form is available on the Northern District of California’s website, 22 23 .pdf. Parties are free to withhold consent without adverse substantive consequences. 24 Fed. R. Civ. P. 73(b)(2). 25 26 IT IS SO ORDERED. Dated: November 13, 2020 27 VIRGINIA K. DEMARCHI United States Magistrate Judge 28 2

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