Hernandez v. Davey et al

Northern District of California, cand-4:2015-cv-01805

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 7/7/2015. Traverse due by 8/6/2015. Signed by Judge Laurel Beeler on 5/8/2015. (lblc2, COURT STAFF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division 11 12 ROBERT VALENTINO HERNANDEZ, No. 3:15-cv-01805 LB UNITED STATES DISTRICT COURT For the Northern District of California 13 Petitioner, ORDER TO SHOW CAUSE 14 v. [Re: ECF No. 1] 15 DAVE DAVEY, Warden, 16 Respondent. 17 _____________________________________/ 18 19 INTRODUCTION 20 Robert Valentino Hernandez, an inmate at California State Prison – Corcoran in Corcoran, 21 California, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Petition, 22 ECF No. 1.) His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 23 of the Rules Governing Section 2254 Cases in the United States District Courts. This order requires 24 the respondent to respond to the petition. 25 STATEMENT 26 Mr. Hernandez was convicted in the Contra Costa County Superior Court of two counts of first 27 degree murder with associated firearms and gang enhancements. He was sentenced to two 28 consecutive terms of 15 years to life in state prison. Among the evidence introduced against him 3:15-cv-01346 LB ORDER 1 was the testimony of Jason Treas, who had been in jail with Mr. Hernandez on two occasions and 2 who testified about what Mr. Hernandez told him while they were in jail together. 3 After he was convicted, Mr. Hernandez timely filed a direct appeal to the California Count of 4 Appeals, First District, which affirmed his convictions. Mr. Hernandez then timely filed a petition 5 for review with the California Supreme Court. The California Supreme Court denied his petition for 6 review on January 21, 2014. 7 On April 21, 2015, Mr. Hernandez filed the instant petition for writ of habeas corpus in this 8 court. 9 ANALYSIS 10 This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody 11 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the 12 Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 UNITED STATES DISTRICT COURT For the Northern District of California 13 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent 14 to show cause why the writ should not be granted, unless it appears from the application that the 15 applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. 16 In his federal petition, Mr. Hernandez asserts that he is entitled to a writ of habeas corpus due to 17 a violation of his Sixth Amendment right to counsel under Massiah v. United States, 377 U.S. 201 18 (1964). The Supreme Court has held that the right to counsel under Massiah "guarantees the 19 accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' 20 between him and the State." Maine v. Moulton, 474 U.S. 159, 176 (1985). Although "the Sixth 21 Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating 22 statements from the accused after the right to counsel has attached," the state may not knowingly 23 exploit an opportunity to confront an accused in the absence of counsel or intentionally create a 24 situation "likely to induce [him] to make incriminating statements without the assistance of 25 counsel." Id.; United States v. Henry, 447 U.S. 264, 274 (1980). To prove a Sixth Amendment 26 Massiah violation based on the government's use of an informant, a petitioner must show that the 27 informant was acting as a government agent and that he or she "deliberately elicited" incriminating 28 statements from the petitioner. Massiah, 377 U.S. at 206; Henry, 447 U.S. at 269-70. 3:15-cv-01346 LB ORDER 2 1 Upon review of Mr. Hernandez's petition, the court cannot say that his claim is patently without 2 merit. Respondent must respond to it. 3 CONCLUSION 4 For the foregoing reasons, 5 1. The claim that Mr. Hernandez's Sixth Amendment right to counsel under Massiah v. United 6 States, 377 U.S. 201 (1964), was violated warrants a response. 7 2. The clerk shall serve by mail a copy of this order, the petition and all attachments thereto 8 upon Respondent and Respondent's attorney, the Attorney General of the State of California. The 9 clerk shall also serve a copy of this order on Mr. Hernandez. 10 3. The clerk also shall serve a copy of the "consent or declination to magistrate judge 11 jurisdiction" form upon respondent and respondent's attorney, the Attorney General of the State of 12 California. UNITED STATES DISTRICT COURT For the Northern District of California 13 4. Respondent must file and serve upon Mr. Hernandez, on or before July 7, 2015, an answer 14 conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why 15 a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all 16 portions of the court proceedings that have been previously transcribed and that are relevant to a 17 determination of the issues presented by the petition. 18 5. If Mr. Hernandez wishes to respond to the answer, he must do so by filing a traverse with the 19 court and serving it on Respondent on or before August 6, 2015. 20 IT IS SO ORDERED. 21 Dated: May 8, 2015 _______________________________ 22 LAUREL BEELER United States Magistrate Judge 23 24 25 26 27 28 3:15-cv-01346 LB ORDER 3