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Zavala v. Biter

United States District Court, N.D. California

July 2, 2015

MARK ANDREW ZAVALA, AE8159, Petitioner,
v.
MARTIN BITER, Warden, Respondent.

ORDER TO SHOW CAUSE (Dkt. #2)

CHARLES R. BREYER, District Judge.

Petitioner Mark Andrew Zavala, a state prisoner incarcerated at Kern Valley State Prison, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from Santa Clara County Superior Court. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

BACKGROUND

Following a jury trial, petitioner and co-defendants Scott Alan Hensley and Jonathan David Rodriguez were convicted of three counts of robbery, and petitioner and Hensley also were convicted of assault with a firearm. For all of the crimes of which defendants were convicted, the jury found true criminal street gang allegations. As to the three counts of robbery, the jury found true that petitioner had personally and intentionally discharged a firearm and that both Hensley and Rodriguez were principals in the offense and at least one principal personally and intentionally discharged a firearm. The jury also found true that petitioner had personally used a firearm in the commission of the assault.

Hensley admitted a prior conviction within the meaning of California's three strikes law, a prior serious felony conviction and two prior prison term allegations. Rodriguez admitted a prior prison term allegation.

On April 26, 2010, the trial court sentenced petitioner to a total prison term of 33 years, Hensley to a total prison term of 31 years and Rodriguez to a total prison term of 22 years.

Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which on February 11, 2014 denied review of a petition allegedly raising the same claims raised here. On October 6, 2014, the Supreme Court of the United States denied certiorari review.

DISCUSSION

A. 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.

B. Claims

Petitioner seeks federal habeas corpus relief by raising several claims, including juror misconduct, instructional error, prejudicial denial of motion to bifurcate trial and denial of right to confront witnesses. Liberally construed, the claims appear cognizable under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th ...


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