United States District Court, N.D. California, San Francisco Division
ORDER TO SHOW CAUSE
RICHARD SEEBORG United States District Judge
seeks federal habeas relief under 28 U.S.C. § 2254 from
his state convictions. The petition for such relief is now
before the Court for review pursuant to 28 U.S.C. § 2243
and Rule 4 of the Rules Governing Section 2254 Cases.
Respondent shall file a response to the petition on or before
October 17, 2016, unless an extension is granted.
to the petition, in 2013, a San Francisco County Superior
Court jury convicted petitioner of first degree burglary. He
was sentenced to nine years in state prison.
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).
district court considering an application for a writ of
habeas corpus 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).
grounds for federal habeas relief, petitioner alleges (1)
there was insufficient evidence to support his conviction for
burglary; and (2) evidence used at trial had been seized in
violation of the Fourth Amendment. When liberally construed,
Claim 1 is cognizable on federal habeas review.
is not, however, and is DISMISSED. Fourth Amendment claims
are barred from federal habeas review unless the state did
not provide an opportunity for full and fair litigation of
those claims. Stone v. Powell, 428 U.S. 465, 481-82,
494 (1976). The existence of a state procedure allowing an
opportunity for a full and fair litigation of Fourth
Amendment claims, rather than a defendant’s actual use
of those procedures, bars federal habeas consideration of
those claims. See Gordon v. Duran, 895 F.2d 610,
613-14 (9th Cir. 1990) (whether or not defendant litigated
Fourth Amendment claim in state court is irrelevant if he had
opportunity to do so under California law).
California’s state procedure provides an opportunity
for full litigation of Fourth Amendment claims. See
id.; Cal. Pen. Code § 1538.5.
Clerk shall serve a copy of this order, the petition and all
attachments thereto, on respondent and respondent’s
counsel, the Attorney General for the State of California.
The Clerk shall also serve a copy of this order on
Respondent shall file with the Court and serve on petitioner,
within sixty (60) days of the date this order is filed, 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 based on
petitioner’s cognizable claims. Respondent shall file
with the answer and serve on petitioner a copy of all
portions of the state trial record that previously have been
transcribed and that are relevant to a determination of the
issues presented by the petition.
petitioner wishes to respond to the answer, he shall do so by
filing a traverse with the Court and serving it on
respondent’s counsel within ...