United States District Court, N.D. California
October 5, 2005.
LARRY PAGE, Petitioner,
DAVID L. RUNNELS, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER REOPENING THE CASE AND TO SHOW CAUSE
Larry Page, an inmate at the High Desert State Prison, filed
this pro se action seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Upon initial review, the court noted that the
petition appeared to have a claim for which state court remedies
had not been exhausted. The court required Page to choose how he
wanted to cure the problem of the unexhausted claim. Page elected
to request a stay of the proceedings while he exhausted his
unexhausted claim in the California Supreme Court. The court
stayed the action and administratively closed it. Page recently
filed a motion to reopen the action and file an amended petition.
Page reports in his amended petition that he was convicted in
the Santa Clara County Superior Court of conspiracy, attempted
vehicle theft, assault with a deadly weapon, burglary and
attempted robbery. Several sentence enhancement allegations were
found true. On May 15, 2000, Page was sentenced to terms of 106
years to life in prison. He appealed. The California Court of Appeal affirmed his
conviction with a sentence modification. The California Supreme
Court denied his petition for review. Page then filed this
After this action was filed and stayed, Page filed a petition
for writ of habeas corpus in the California Supreme Court. After
he received a denial of his state habeas petition, Page moved to
reopen this action and amend his stayed petition.
A. Motion To Reopen And Amend the Stayed Petition
This action was stayed while Page exhausted state court
remedies for a claim he wanted to assert in federal habeas but
had not been included in his petition for review on direct appeal
to the California Supreme Court. Page recently completed his
unsuccessful efforts in state habeas and moved to reopen this
action and amend his stayed petition. In his motion, Page
explained that he "diligently prepared and submitted" a habeas
petition in the California Supreme Court and that the petition
was denied on July 13, 2005, less than a month before he filed
his motion to reopen this action. Upon due consideration, the
motion to reopen the action and amend the stayed petition will be
granted. The amended petition received on August 5, 2005 will be
filed by the clerk. The court will now review the amended
B. Review Of Amended Petition
This court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). A district court considering an application for
a writ of habeas corpus shall "award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the
applicant or person detained is not entitled thereto."
28 U.S.C. § 2243. Summary dismissal is appropriate only where the
allegations in the petition are vague or conclusory, palpably
incredible, or patently frivolous or false. See Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
The amended petition alleges the following claims for relief:
(1) the trial court's refusal to instruct on the claim-of-right
defense violated Page's right to due process, (2) the trial
court's denial of a discovery motion to obtain a police officer's
personnel records violated Page's right to due process and his
Sixth Amendment right to confront witnesses, (3) the exclusion of
relevant exculpatory evidence violated Page's rights to present a
defense and due process, (4) the trial court's refusal to
instruct on the unreliability of drug addicts' testimony violated
Page's rights to due process and a fair trial, and (5) Page's
counsel provided ineffective assistance of counsel by refusing to
allow him to testify in his own defense. Liberally construed, the
claims are cognizable in a federal habeas action and warrant a
response from respondent.
This order only determines that the claims are cognizable. The
record before the court is insufficient for the court to
determine that the claims are timely or that state court remedies
have been exhausted as to all of them. The court leaves it to
respondent to raise any procedural problems in his answer or in a
motion to dismiss.
For the foregoing reasons,
1. Petitioner's motion to reopen the action and amend the
stayed petition is GRANTED. (Docket # 10.) The stay of
proceedings is lifted. The clerk shall reopen this action and
file the amended petition received on August 5, 2005.
2. The amended petition states cognizable claims for habeas
relief and warrants a response.
3. The clerk shall serve by certified mail a copy of this
order, the petition, amended petition and all attachments thereto
upon respondent and respondent's attorney, the Attorney General
of the State of California. The clerk shall also serve a copy of
this order on petitioner.
4. Respondent must file and serve upon petitioner, on or before
December 9, 2005, an answer conforming in all respects to Rule
5 of the Rules Governing Section 2254 Cases, showing cause why a
writ of habeas corpus should not be issued. Respondent must file
with the answer a copy of all portions of the court proceedings that have
been previously transcribed and that are relevant to a
determination of the issues presented by the petition.
5. If petitioner wishes to respond to the answer, he must do so
by filing a traverse with the Court and serving it on respondent
on or before January 13, 2006.
IT IS SO ORDERED.
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