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Tilbury v. Frauenheim

United States District Court, N.D. California, Eureka Division

April 2, 2015

DANIEL TILBURY, Petitioner,
v.
S. FRAUENHEIM, Respondent.

ORDER FOR RESPONDENT TO SHOW CAUSE

NANDOR J. VADAS, Magistrate Judge.

Petitioner, a state 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 for the killing of his ex-wife after he shot her seven times with a.50 caliber pistol. He was sentenced to 50 years to life in prison.

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. 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 that: (1) his rights were violated by the trial court's failure to define the term "provocation" in the manslaughter instruction; (2) the trial court erred by refusing to modify the jury instructions on murder and manslaughter as requested by trial counsel; (3) the trial court erred by using a murder instruction which did not instruct that lack of provocation is an element of murder; (4) the trial court committed structural error by refusing in advance to answer questions from the jury; (5) he was deprived of the right to present a defense by the trial court's exclusion of evidence regarding petitioner's concerns about his children's welfare; (6) there was insufficient evidence to establish the malice element; (7) the trial court violated his rights by not permitting trial counsel to conduct voir dire on the jury's predisposition regarding manslaughter; (8) cumulative error of the above claims; (9) ineffective assistance of counsel due to the failure to assert an unconsciousness defense; (10) ineffective assistance of counsel due to the failure to object to the admission of irrelevant and prejudicial evidence; (11) ineffective assistance of counsel due to the failure to object to the prosecutor's misconduct in closing argument; and (12) cumulative error arising from trial counsel's errors. Liberally construed, these claims are sufficient to require a response.

CONCLUSION

1. 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.

2. 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 (28) days of his receipt of the answer.

3. Respondent may 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, it is due fifty-six (56) days from the date this order is entered. If a motion is filed, petitioner shall file with the court and serve on respondent an opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of receipt of any opposition.

4. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court informed of any change of address and 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). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

IT IS SO ORDERED.


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