United States District Court, N.D. California, Oakland Division
ORDER LIFTING STAY AND FOR RESPONDENT TO SHOW CAUSE
PHYLLIS J. HAMILTON, District Judge.
Petitioner, a California prisoner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Alameda County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). This case was stayed so petitioner could exhaust further claims and he has filed an amended petition and a motion to lift the stay.
A jury convicted petitioner of first degree murder, second degree murder and possession of firearm by a felon. He was sentenced to 190 years to life in prison. Petitioner's appeals to the California Court of Appeals and California Supreme Court were denied. His habeas petition to the California Supreme Court to exhaust additional claims was also denied.
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) the trial court erred by denying his motion to sever the charges of the two murders in violation of due process; (2) ineffective assistance of counsel for failing to properly schedule an expert and the trial court erred in denying a continuance; (3) erroneous jury instruction; (4) ineffective assistance of appellate counsel for failing to raise a Brady claim; and (5) ineffective assistance of appellate counsel for failing to raise a claim that extra security during trial violated due process. These claims are sufficient to require a response.
1. The motion to lift the stay (Docket No. 9) is GRANTED and this case is REOPENED.
2. The clerk shall serve by regular mail a copy of this order and the amended petition (Docket No. 7) 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 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 ...