United States District Court, N.D. California
CHAYNE E. IRVIN, Petitioner,
STATE OF CALIFORNIA, Respondent.
E Irvin, Petitioner, Pro Se.
ORDER TO SHOW CAUSE; DENYING MOTION FOR STAY (Dkt.
WILLIAM ALSUP, District Judge.
a California prisoner, filed this pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. 2254 challenging his
state court conviction. He has paid the filing fee. He has
also filed a motion for a stay and abeyance. For the reasons
discussed below, the motion is denied, but respondent is
ordered to show cause why the petition should not be granted.
1998, petitioner was convicted in Humboldt County Superior
Court and sentenced to a term of 23 years in state prison.
His appeals to the California Court of Appeals and the
California Supreme Court were denied. He has filed a number
of habeas petitions in all three levels of the state courts,
and all of the petitions were denied.
STANDARD OF REVIEW
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 which are available
to the petitioner... and shall set forth in summary form the
facts supporting each of the grounds thus specified."
Rule 2(c) of the Rules Governing Section 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)).
claims: (1) that his sentence violates his right to due
process because it is "illegal" under California
law; (2) he received ineffective assistance of trial counsel;
(3) he received ineffective assistance of appellate counsel;
and (3) the prosecutor committed misconduct in violation of
his right to due process. When liberally construed, these
claim warrant a response.
has also filed a motion for a stay and abeyance to allow him
to exhaust his claims of ineffective assistance of counsel
and "statutory violations of due process." It is
not clear what is meant by the latter, but it presumably
refers to his claim that his sentence violates due process
because it is not authorized under certain statutes in the
California Penal Code. In order to obtain a stay, petitioner
is required to show that the unexhausted claims are
potentially meritorious and to show cause for his failure to
exhaust his claims in the state courts before he
filed the instant federal petition. See Rhines
v. Webber 544 U.S. 269, 278-79 (2005). He has not
explained why he did not exhaust his claims prior to filing
the instant petition, let alone shown cause therefor.
Accordingly, he is not entitled to a stay at this time.
Petitioner may renew his motion for a stay within 28 days of
the date this order is filed provided that in doing so he
shows good cause for not rasing his claims in the state
courts before filing the instant petition.
clerk shall mail a copy of this order and the petition with
all attachments to the respondent and the respondent's
attorney, the Attorney General of the State of California.