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Ward v. Swarthout

United States District Court, Ninth Circuit

November 18, 2013

TREVILLION WARD, Petitioner,
v.
GARY SWARTHOUT, Respondent.

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Dkt. 5)

JEFFREY S. WHITE, District Judge.

INTRODUCTION

Petitioner, a prisoner of the State of California proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state court conviction. He has applied for leave to proceed in forma pauperis.

BACKGROUND

In 2010, Petitioner was convicted in Alameda Clara County Superior Court of attempted murder, assault, corporal injury to a spouse, and possession of a gun by a felon. He was sentenced to a term of 140 years to life in state prison. The California Court of Appeal affirmed the judgment on appeal, and the California Supreme Court denied a petition for review. Habeas petitions filed by Petitioner in the Alameda County Superior Court, the California Court of Appeal, and the California Supreme Court were denied.

DISCUSSION

I Standard of Review

This court may entertain a petition for a 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). It 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." Id. § 2243.

II. Legal Claims

As grounds for federal habeas relief, Petitioner claims that: (1) the trial court denied his requests for jury instructions on lesser-included offenses, in violation of due process; (2) admission of testimony regarding brandishing a weapon violated his right to due process; (3) jurors committed misconduct by consuming alcohol during deliberations; (4) cumulative prejudice from various errors violated his right to due process; (5) the use of prior convictions to enhance his sentence violated his rights to due process and to be free from double jeopardy and cruel and unusual punishment; (6) the use of an "erroneously recorded" prior conviction at trial for impeachment and at sentencing for enhancement violated his right to due process; (7) he received ineffective assistance of trial counsel in six different respects; (8) he received ineffective assistance of appellate counsel; and (9) jury selection violated his equal protection rights. Liberally construed, these claims are sufficient to warrant a response from Respondent.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The Clerk shall serve by certified mail a copy of this order and the petition, and all attachments thereto, on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

2. Respondent shall file with the Court and serve on Petitioner, within 91 days of the issuance of this order, 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 granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within twenty-eight (28) days of the date the answer is filed.

3. Respondent may, within ninety-one (91) days, file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition within twenty-eight (28) days of the date the motion is filed, and Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed.

4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.


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