United States District Court, N.D. California, Oakland Division
ORDER FOR RESPONDENT TO SHOW CAUSE
PHYLLIS J. HAMILTON, District Judge.
Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This petition was dismissed without prejudice at screening but the Ninth Circuit has remanded the case so respondent could be served and file a response. Docket No. 10.
Petitioner was found guilty of corporal injury on a spouse after a court trial and sentenced to three years of probation. People v. Wang, 2007 WL 2177900 *1 (Cal.App. 6 Dist, 2007).
A. Standard of Review
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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief available to the petitioner... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). "Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal." Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring).
B. Legal Claims
As grounds for federal habeas relief, petitioner asserts: (1) ineffective assistance of counsel; (2) the trial court denied a motion to change venue and made a biased remark; (3) ineffective assistance of appellate counsel; (4) the trial court was biased; (5) the police did not conduct a fair investigation and the prosecutor should have known the allegations were false; (6) he was denied postage in jail and not provided a mattress; and (7) the transcripts were altered.
Claim six regarding being denied postage and a mattress does not involve the underlying conviction and is dismissed from the petition. The remaining claims will proceed.
1. Claim six is dismissed but the remaining claims shall proceed.
2. The clerk shall serve by regular 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.
3. Respondent shall file with the court and serve on petitioner, within sixty 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 ...