Medina v. Madden

Northern District of California, cand-4:2015-cv-02708

ORDER TO SHOW CAUSE. Signed by Judge Nathanael M. Cousins on 9/23/2015. **Order includes instructions for the Clerk's Office to serve the Attorney General's Office** (Additional attachment(s) added on 9/23/2015: # {{1}} Certificate/Proof of Service)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 15-2708 NC (PR) LUIS MEDINA, For the Northern District of California 11 ORDER TO SHOW CAUSE Petitioner, United States District Court 12 v. 13 14 RAYMOND MADDEN, 15 Respondent. 16 / 17 INTRODUCTION 18 Luis Medina, a California state prisoner, filed a pro se petition for writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254 challenging his convictions from Santa Clara County 20 Superior Court.1 Petitioner has paid the filing fee. His petition is now before the Court for 21 review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases. 22 For the reasons stated below, the Court orders Respondent to show cause why the petition 23 should not be granted. 24 BACKGROUND 25 In 2013, Petitioner was convicted by a jury of sexual penetration of a minor, forcible 26 child molestation, and child molestation. He was sentenced to a term of 18 years to life. The 27 California Court of Appeal affirmed, and the California Supreme Court denied review. 28 1 Petitioner has consented to magistrate judge jurisdiction. (Docket No. 6.) 1 Petitioner filed an unsuccessful state habeas petition in the California Supreme Court. The 2 instant action was filed on June 1, 2015. 3 DISCUSSION 4 A. Standard of Review 5 This Court may entertain a petition for writ of habeas corpus "in behalf of a person in 6 custody pursuant to the judgment of a State court only on the ground that he is in custody in 7 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 8 A district court considering an application for a writ of habeas corpus shall "award the writ 9 or issue an order directing the respondent to show cause why the writ should not be granted, 10 unless it appears from the application that the applicant or person detained is not entitled For the Northern District of California 11 thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in United States District Court 12 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 13 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 14 B. Legal Claims 15 As grounds for federal habeas relief, Petitioner claims: (1) the prosecutor committed 16 misconduct, and (2) trial counsel rendered ineffective assistance. Liberally construed, these 17 claims are sufficient to warrant an answer from Respondent. 18 CONCLUSION 19 For the foregoing reasons and for good cause shown: 20 1. The Clerk of the Court is directed to serve a Magistrate Judge jurisdiction consent 21 form, a copy of this Order, and the petition, and all attachments thereto, on Respondent and 22 Respondent's attorney, the Attorney General of the State of California. Respondent shall file 23 his Magistrate Judge jurisdiction consent form no later than thirty (30) days from the filing 24 date of this Order. 25 2. Respondent is directed to file with the Court and serve on Petitioner, within ninety 26 (90) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 27 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 28 be granted based on the claims found cognizable herein. Respondent must file with the 2 1 answer and serve on Petitioner a copy of all portions of the state trial record that have been 2 transcribed previously and that are relevant to a determination of the issues presented by the 3 petition. 4 If Petitioner wishes to respond to the answer, he must do so by filing a traverse with 5 the Court and serving it on Respondent within thirty (30) days of the date the answer is filed. 6 3. Respondent may file, within ninety (90) days, a motion to dismiss on procedural 7 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 8 Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner must file 9 with the Court and serve on Respondent an opposition or statement of non-opposition within 10 twenty-eight (28) days of the date the motion is filed, and Respondent must file with the For the Northern District of California 11 Court and serve on Petitioner a reply within fourteen (14) days of the date any opposition is United States District Court 12 filed. 13 4. Petitioner is reminded that all communications with the Court must be served on 14 Respondent by mailing a true copy of the document to Respondent's counsel. Petitioner 15 must keep the Court informed of any change of address and must comply with the Court's 16 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 17 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 IT IS SO ORDERED. 19 DATED: September 23, 2015 20 NATHANAEL M. COUSINS United States Magistrate Judge 21 22 23 24 25 26 27 28 3