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)

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

https://cand.uscourts.gov/filelibrary/1335/MJ_Consent-Declination_Form_Jan2014

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