Perez v. DuCart

Northern District of California, cand-4:2015-cv-02010

ORDER TO SHOW CAUSE. Signed by Judge Jeffrey S. White on 11/24/15.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANGEL R. PEREZ, 7 Case No. 15-cv-02010-JSW Petitioner, 8 v. ORDER TO SHOW CAUSE 9 CLARK E. DUCART, Re: Docket No. 7 10 Respondent. 11 12 Northern District of California United States District Court 13 Petitioner, Angel R. Perez ("Petitioner"), a state prisoner, has filed a consolidated petition 14 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 15 BACKGROUND 16 Following a jury trial, Petitioner was convicted of, inter alia, six counts of second degree 17 robbery, in violation of California Penal Code sections 211 and 212.5(c), two counts of reckless 18 evading, in violation of Vehicle Code section 2800.2(a), and one count of vandalism, in violation 19 of California Penal Code section 594(a). Petitioner currently is serving a sentence of 47 years and 20 8 months in prison. 21 DISCUSSION 22 A. Legal Standard. 23 This Court may entertain a petition for writ of habeas corpus "in behalf of a person in 24 custody pursuant to the judgment of a State court only on the ground that he is in custody in 25 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The 26 1 27 On May 5, 2015, Petitioned filed his petition for a writ of habeas corpus. On August 20, 2015, Petitioner filed an amended petition, and the Court directed him to file a consolidated 28 petition. On September 4, 2015, Petitioner filed his consolidated petition for a writ of habeas corpus. 1 Court shall "award the writ or issue an order directing the respondent to show cause why the writ 2 should not be granted, unless it appears from the application that the applicant or person detained 3 is not entitled thereto." 28 U.S.C. § 2243. 4 Summary dismissal is appropriate only where the allegations in the petition are vague or 5 conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 6 490, 491 (9th Cir. 1990). 7 B. Petitioner's Legal Claims. 8 Petitioner asserts two claims for relief: (1) the trial court violated his due process rights 9 when it denied his motion for a new trial; and (2) counsel was ineffective because he failed to file 10 a motion to suppress evidence. Liberally construed, the claims appear potentially colorable under 11 28 U.S.C. section 2254 and merit an answer from Respondent. 12 CONCLUSION Northern District of California United States District Court 13 For the foregoing reasons and for good cause shown: 14 1. Petitioner shall serve a copy of this order and the petition, and all attachments 15 thereto, on Respondent and Respondent's attorney, the Attorney General of the State of California. 16 2. Respondent shall file with the Court and serve on Petitioner, within ninety-one (91) 17 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 18 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 19 Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state 20 trial record that have been transcribed previously and that are relevant to a determination of the 21 issues presented by the petition. 22 3. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 23 the Court and serving it on Respondent within twenty-eight (28) days of the date the answer is 24 filed. 25 4. Respondent may, within ninety-one (91) days, file a motion to dismiss on 26 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 27 the Rules Governing Section 2254 Cases. If Respondent files such a motion, Respondent need not 28 notice the motion for hearing. Petitioner shall file with the Court and serve on Respondent an 2 1 opp position or statement s of non-opposittion within tw wenty-eight (28) days off the date thee motion is 2 fileed, and Resp pondent shalll file with th he Court andd serve on Peetitioner a repply within foourteen (14) 3 day ys of the date any opposiition is filed d. The motioon shall be ddecided on thhe papers. 4 IT IS SO S ORDER RED. 5 Daated: Novem mber 24, 2015 6 7 ___________________________ JE EFFREY S. W WHITE 8 Unnited States D District Judgge 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3