UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 26, 2011
R. E. BARNES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 5)
ORDER GRANTING PETITIONER'S MOTION TO AMEND THE PETITION
TO WITHDRAW UNEXHAUSTED CLAIM
CONCERNING INEFFECTIVE ASSISTANCE
OF COUNSEL (DOC. 6)
ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO PETITIONER'S CLAIMS CONCERNING INSTRUCTIONAL ERROR AND THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT HIS CONVICTION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's response to the order to show cause that issued on February 11, 2011.
I. Discharge of the Order to Show Cause On February 11, 2011, the Court directed Petitioner to show cause why the petition should not be dismissed as a mixed petition containing both exhausted claims and claims as to which Petitioner's state court remedies had not been exhausted.
Petitioner responded to the order to show cause on February 25, 2011.
Accordingly, the order to show cause will be discharged.
II. Amendment of Petition to Withdraw Unexhausted Claim Petitioner alleges three claims in the petition:
1) appellate counsel was ineffective for failing to raise on appeal the insufficiency of the evidence to support Petitioner's convictions; 2) an erroneous jury instruction concerning motive, which permitted consideration of unemployment and poverty as evidence tending to show guilt, violated his rights to due process of law and a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments; and 3) the evidence was insufficient to support his convictions, and thus Petitioner suffered a violation of due process of law. (Pet. 4-5.)
In his response to the order to show cause, Petitioner stated that his claim concerning the allegedly ineffective assistance of counsel was unexhausted and moved to amend the petition to withdraw the claim so that the other claims, which Petitioner stated were properly exhausted, could be properly reviewed in this proceeding.
Petitioner's motion to amend the petition to withdraw the claim concerning the allegedly ineffective assistance of counsel will be granted, and the action will proceed on Petitioner's remaining claims.
III. Response to the Petition
With respect to Petitioner's claims concerning the insufficiency of the evidence and instructional error, the Court has conducted a preliminary review of the petition. It is not clear from the face of the petition whether Petitioner is entitled to relief. 28 U.S.C. § 2243.
Accordingly, Respondent will be directed to respond to these claims.
Accordingly, it is ORDERED that
1) The order to show cause that issued on February 11, 2011, is DISCHARGED; and
2) Petitioner's motion to amend the petition to withdraw the claim concerning the allegedly ineffective assistance of counsel is GRANTED, and the action will PROCEED on Petitioner's remaining claims; and
3) With respect to Petitioner's claims concerning the insufficiency of the evidence and instructional error, pursuant to Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure, *fn1 the Court hereby ORDERS:
a) Respondent SHALL FILE a RESPONSE to the petition *fn2 within SIXTY (60) days of the date of service of this order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9 th Cir. 1985) (court has discretion to fix time for filing a response). A response can be made by filing one of the following:
1) An ANSWER addressing the merits of the petition. Respondent SHALL INCLUDE with the ANSWER any and all transcripts or other documents necessary for the resolution of the issues presented in the petition. See Rule 5, Rules Governing Section 2254 Cases. Any argument by Respondent that a claim of Petitioner has been procedurally defaulted SHALL BE MADE in the ANSWER, but must also address the merits of the claim asserted.
2) A MOTION TO DISMISS the petition. A motion to dismiss SHALL INCLUDE copies of all Petitioner's state court filings and dispositive rulings. See Rule 5, Rules Governing Section 2254 Cases. *fn3
b) If Respondent files an answer to the petition,
Petitioner MAY FILE a traverse within THIRTY (30) days
of the date Respondent's answer is filed with the Court. If
no traverse is filed, the petition and answer are deemed submitted at
the expiration of the thirty (30) days.
c. If Respondent files a motion to dismiss, Petitioner SHALL FILE
an opposition or statement of non-opposition within
TWENTY-ONE (21) days of the date Respondent's motion is
filed with the Court. If no opposition is filed, the motion to dismiss
is deemed submitted at the expiration of the thirty (30) days. Any
reply to an opposition to the motion to dismiss SHALL BE FILED within
SEVEN (7) days after the opposition is served.
d. Unless already submitted, both Respondent and Petitioner SHALL COMPLETE and RETURN to the Court within THIRTY
(30) days a consent/decline form indicating whether the party consents or declines to consent to the jurisdiction of the United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).
4. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative.
All motions shall be submitted on the record and briefs filed without oral argument unless otherwise ordered by the Court. Local Rule 230(l). Requests for extensions of time will only be granted upon a showing of good cause. All provisions of Local Rule 110 are applicable to this order.
IT IS SO ORDERED.