United States District Court, N.D. California, San Francisco Division
ORDER TO SHOW CAUSE RE: ECF NO. 15
BEELER, UNITED STATES MAGISTRATE JUDGE
Westover, a prisoner housed at the Pleasant Valley State
Prison, filed this pro se action seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He consented
to proceed before a magistrate judge. (ECF No. 12.) The court
reviewed his petition, determined that it stated two claims
and ordered Mr. Westover to file an amendment to allege facts
in support of a third potential claim. (ECF No. 13.) Mr.
Westover then filed an amended petition, which 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. This order requires the respondent to
respond to the amended petition.
Westover provides the following information: After a jury
trial in Santa Clara County Superior Court, Mr. Westover was
convicted of second degree murder, gross vehicular
manslaughter while intoxicated, driving while under the
influence of alcohol and causing injury, and driving with a
blood alcohol level of 0.08 percent or more and causing
injury. Sentence enhancement allegations were found true. Mr.
Westover was sentenced to a term of 15 years to life
consecutive to 10 years in state prison.
appealed. The California Court of Appeal affirmed Mr.
Westover's conviction in 2015 and the California Supreme
Court denied his petition for review in 2016.
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). 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.
amended petition alleges the following claims: (1) the trial
court's denial of Mr. Westover's request for a
pinpoint instruction on his theory of the case violated Mr.
Westover's Fourteenth Amendment right to due process; (2)
the jury instructions reduced the prosecution's burden of
proof to less than proof-beyond-a-reasonable-doubt, in
violation of Mr. Westover's Fourteenth Amendment right to
due process; (3) the exclusion of certain evidence about
drunk driving violated Mr. Westover's Sixth Amendment
rights to compulsory process and confrontation, and
Fourteenth Amendment right to due process; (4) Mr.
Westover's Fourteenth Amendment right to due process was
violated when the prosecutor engaged in misconduct during
closing argument with his comments on the meaning of the word
“conscious;” (5) Mr. Westover received
ineffective assistance of trial counsel when counsel relied
on the PAS results for a rising blood-alcohol argument, but
failed to show that the PAS machine was properly calibrated;
and (6) the cumulative effect of the foregoing errors
requires the conviction to be set aside. Liberally construed,
these claims are cognizable in a federal habeas action.
foregoing reasons, 1. The amended petition warrants a
clerk shall serve by mail a copy of this order and the
amended petition upon the respondent and the respondent's
attorney, the Attorney General of the State of California.
The clerk shall also serve a copy of this order on the
clerk also shall serve a copy of the “consent or
declination to magistrate judge jurisdiction” form upon
the respondent and the respondent's attorney, the
Attorney General of the State of California.
respondent must file and serve upon the petitioner, on or
before June 2, 2017, 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. The
respondent must file with the answer a copy of all portions
of the court proceedings that have been ...