Sutton v. United States of America
Filing
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ORDER to Show Cause. Signed by Magistrate Judge Virginia K. DeMarchi on 5/18/2023. (vkdlc1, COURT STAFF) (Filed on 5/18/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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WALTER JAY SUTTON,
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Plaintiff,
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ORDER TO SHOW CAUSE
v.
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C. KOENIG,
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United States District Court
Northern District of California
Case No. 23-cv-00252-VKD
Defendant.
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Petitioner Walter Jay Sutton, a California prisoner, filed a pro se petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction in Santa Cruz
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County Superior Court. Dkt. No. 7 at 1. Mr. Sutton filed a motion for leave to proceed in forma
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pauperis, Dkt. No. 9, which was terminated as moot since he paid the filing fee. Dkt. No. 8.
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I.
STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It
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shall “award the writ or issue an order directing the respondent to show cause why the writ should
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not be granted, unless it appears from the application that the applicant or person detained is not
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entitled thereto.” Id. § 2243.
Federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally.
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Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).
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II.
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DISCUSSION
Mr. Sutton raises the following claims for federal habeas relief: (1) ineffective assistance
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of counsel for encouraging Mr. Sutton to stop taking his medication during trial, Dkt. No. 1 at 35;
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and (2) denial of his right to conflict-free counsel to file a motion for new trial and at sentencing
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due to an irreconcilable conflict, id. at 46.
Liberally construed, these claims are cognizable under § 2254 and merit an answer from
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Respondent C. Koenig, the warden of the prison where Mr. Sutton is incarcerated.
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III.
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For the foregoing reasons and for good cause shown,
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1.
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United States District Court
Northern District of California
CONCLUSION
The Clerk shall serve electronically a copy of this order upon the Respondent and
the Respondent’s attorney, the Attorney General of the State of California, at the following email
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address: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and any
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exhibits thereto are available via the Electronic Case Filing System for the Northern District of
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California. See Dkt. No. 7. The Clerk shall also include a magistrate judge jurisdiction
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consent/declination form. The Clerk also shall serve a copy of this order on Mr. Sutton.
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2.
Respondent shall serve on Mr. Sutton, within 60 days of the issuance of this order,
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an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases and
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Habeas L.R. 2254-6(b), showing cause why a writ of habeas corpus should not be issued.
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Respondent shall file with the answer and serve on Mr. Sutton a copy of all portions of the state
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court trial record that have been transcribed previously and that are relevant to a determination of
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the issues presented by the petition.
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If Mr. Sutton wishes to respond to the answer, he shall do so by filing a traverse with the
Court and serving it on Respondent within 30 days of his receipt of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an
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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section
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2254 Cases. If Respondent files such a motion, Mr. Sutton shall file with the Court and serve on
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Respondent an opposition or statement of non-opposition within 28 days of receipt of the motion,
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and Respondent shall file with the court and serve on Mr. Sutton a reply within 14 days of receipt
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of any opposition.
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4.
Mr. Sutton has the responsibility to prosecute this case. Mr. Sutton is reminded
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that all documents and communications with the Court must be served on Respondent by mailing
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a true copy of the document or communication to Respondent’s counsel. Mr. Sutton must keep
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the Court and all parties informed of any change of address by filing a separate paper captioned
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“Notice of Change of Address.” He must comply with the Court’s orders in a timely fashion.
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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to
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Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
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Dated: May 18, 2023
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VIRGINIA K. DEMARCHI
United States Magistrate Judge
United States District Court
Northern District of California
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