United States District Court, N.D. California, San Francisco Division
Javed
Aslam, Plaintiff, represented by Mark Stuart Goldrosen, Law
Offices of Mark S. Goldrosen.
ORDER TO SHOW CAUSE Re: ECF No. 1
LAUREL
BEELER, Magistrate Judge.
INTRODUCTION
Petitioner
Javed Aslam, an inmate at California Men's Colony Prison,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.[1] Mr. Aslam's petition is now before
the court for review pursuant to 28 U.S.C. § 2243 and Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts. Mr. Aslam consents to proceed before
a magistrate judge.[2] This order requires the respondent to
respond to the petition to show cause why the writ should not
be granted.
STATEMENT
On June
1, 2010, Mr. Aslam was charged in Alameda County with one
count of committing a lewd or lascivious act on a child under
age 14 in violation of Cal. Penal Code § 288(a), one count of
engaging in unlawful intercourse in violation of Cal. Penal
Code § 261.5, three counts of dissuading a witness in
violation of Cal. Penal Code § 136.1, and one count of making
criminal threats in violation of Cal. Penal Code §
422.[3] The information also alleged that Mr.
Aslam committed all six counts while released on bail or on
his own recognizance, in violation of Cal. Penal Code §
12022.1.[4]
On
December 6, 2010, during the jury trial, near the completion
of the defense case, Mr. Aslam's counsel, David Cohen,
requested an in camera hearing.[5] Mr. Aslam was not
present at the hearing.[6] Mr. Cohen explained that the
victim's mother had "recently left a number of
messages with the defense investigator and with [Mr.
Cohen's] staff."[7] The mother had not testified during
the prosecution's case because the prosecutor could not
locate her.[8] Instead, her preliminary hearing
testimony was admitted under Cal. Evid. Code section
1241.[9] Her messages contained purportedly new
exculpatory information, specifically that the person in the
room with Mr. Aslam at the time of the alleged sexual assault
was her niece.[10] Mr. Cohen believed that this
information resulted in a conflict of interest because: 1) he
had never spoken with the mother, and 2) therefore someone
else in the courtroom must have.[11] Thus, Mr. Cohen
believed the information was fabricated.[12] The court
"[found] good cause to discharge the jury and declare a
mistrial" and allowed Mr. Cohen to
withdraw.[13] Mr. Aslam did not have a chance to
object to the mistrial.[14]
On
December 16, 2010, Maureen Kildee was appointed to represent
Mr. Aslam in the retrial.[15] She "did not
enter a plea of once in jeopardy or otherwise object to the
retrial on grounds of double jeopardy."[16] On
February 10, 2011, Donald Foley was appointed to replace
Kildee as defense counsel, and similarly "did not enter
a plea of once in jeopardy or otherwise object to the retrial
on grounds of double jeopardy."[17] At the end of the
retrial, the jury convicted Mr. Aslam of committing a lewd or
lascivious act on a child under age 14, engaging in unlawful
intercourse, and three counts of dissuading a
witness.[18]
Mr.
Aslam appealed his conviction directly to the California
Court of Appeal.[19] He simultaneously filed a petition
for a writ of habeas corpus with the California Court of
Appeal.[20] The court consolidated the direct
appeal and petition for writ of habeas corpus.[21] In 2013,
the California Court of Appeal affirmed Mr. Aslam's
conviction.[22] Mr. Aslam appealed to the California
Supreme Court, which denied the petition for review on April
16, 2014.[23] On April 3, 2015, Mr. Aslam filed a
petition for a writ of habeas corpus, alleging ineffective
assistance of counsel, with the California Court of
Appeal.[24] The court denied the petition and
directed Mr. Aslam to first seek relief in superior
court.[25] On April 16, 2015, Mr. Aslam filed a
petition for a writ of habeas corpus with the Alameda County
Superior Court, which the court denied on February 26,
2016.[26] On April 18, 2016, Mr. Aslam filed a
petition for a writ of habeas corpus with the California
Court of Appeal; the court denied that petition in
May.[27] On May 16, 2016, Mr. Aslam filed a
petition for review in the California Supreme Court and the
petition was denied on July 13, 2016.[28]
On July
18, 2016, Mr. Aslam filed the instant petition for writ of
habeas corpus in this court naming as respondent Josie
Gastelo, Warden of California Men's Colony.[29]
ANALYSIS
This
court may entertain a petition for writ of habeas corpus
"on 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." 28 U.S.C. §
2243. Summary dismissal is appropriate only where the
allegations in the petition are vague or conclusory, palpably
incredible, or patently frivolous or false. See
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
1990).
In his
petition, Mr. Aslam asserts that trial counsel rendered him
ineffective assistance in violation of the Sixth Amendment to
the United States Constitution by failing to enter a plea of
"once in jeopardy" or otherwise object to the
retrial.[30] He further alleges that appellate
counsel was ineffective in failing to raise the claim that
trial counsel was ineffective for not entering a plea of
"once in jeopardy" or otherwise objecting to the
retrial on double jeopardy grounds.[31] Mr. Aslam asserts
that he did not consent to a mistrial, the trial court's
declaration of a mistrial was not based on manifest
necessity, and both trial and appellate counsel were
ineffective because they did not raise a double-jeopardy
argument.[32]
CONCLUSION
For the
foregoing reasons and for good cause shown:
1. The clerk must serve by certified mail a copy of this
order and the petition and all attachments thereto upon the
respondents. The clerk must also serve a ...