United States District Court, N.D. California
ORDER TO SHOW CAUSE
EDWARD J. DAVILA, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. After reviewing the first amended petition, (Docket No. 11, hereafter "FAP"), the Court found three cognizable claims and found the remaining claims incomprehensible. (Docket No. 21.) The Court granted Petitioner leave to file a second amended petition to attempt to state additional claims. (Id.) Petitioner was advised that failure to file a second amended petition in the time provided would result in the matter proceeding solely on the three cognizable claims. (Id. at 4.) The deadline has passed, and Petitioner has not filed a second amended petition. Accordingly, the matter will proceed on the three claims identified below.
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. Legal Claims
Petitioner's FAP states three grounds for relief: (1) he was denied his rights to due process and equal protection of the law when the trial court failed to advise him properly and obtain proper waivers (FAP at 11-12); (2) he was denied the right to confront "the witnesses against him, " in violation of his right to confrontation and his due process rights (id. at 12); and (3) the evidence does not support the conviction (id. at 14). Liberally construed, these claim are cognizable under § 2254 and merit an answer from Respondent.
For the foregoing reasons and for good cause shown,
1. The Clerk shall serve by certified mail a copy of this order and the first amended petition, (Docket No. 11), 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.
2. Respondent shall file with the court and serve on petitioner, within ninety (90) 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 issued. 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 thirty (30) 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, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition within thirty (30) days of receipt of the motion, and Respondent shall ...