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Menjivar v. Frauenheim

United States District Court, Northern District of California, Eureka Division

December 18, 2014

OSCAR L. MENJIVAR, Petitioner,
v.
WARDEN SCOTT FRAUENHEIM, Respondent.

ORDER FOR RESPONDENT TO SHOW CAUSE

NANDOR J. VADAS, United States Magistrate 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 Santa Clara County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241 (d). Petitioner has also applied for leave to proceed in forma pauperis and consented to the jurisdiction of a Magistrate Judge.

BACKGROUND

A jury convicted petitioner of first degree murder and battery causing bodily injury. He was sentenced to 29 years to life in state prison. Petitioner's appeals to the California Court of Appeal and California Supreme Court were denied.[1]

DISCUSSION

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. foil. § 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)).

B. Legal Claims

As grounds for federal habeas relief, petitioner asserts that: (1) there was insufficient evidence to support first degree murder; (2) trial counsel was ineffective by failing to inform petitioner that he could testify and for failing to present a defense regarding petitioner's use of a machete for work; (3) ineffective assistance of appellate counsel; and (4) erroneous jury instructions with respect to voluntary manslaughter. Liberally construed, these claims are sufficient to require a response.[2]

CONCLUSION

1. Petitioner's motion to proceed in forma pauperis (Docket No. 3) is GRANTED.

2. The clerk shall serve by regular mail a copy of this order, the petition and all attachments thereto and a Magistrate Judge jurisdiction consent form 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 fifty-six (56) 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 ...


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