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Marcelo v. Callahan

United States District Court, N.D. California

May 4, 2017

JAIME MARCELO, Petitioner,
v.
CHARLES CALLAHAN, Respondent.

          ORDER TO SHOW CAUSE

          JOSEPH C. SPERO Chief Magistrate Judge.

         INTRODUCTION

         Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions.[1] The petition for such relief is here for review under 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 July 17, 2017, unless an extension is granted. It appears that the claims are unexhausted. If respondent concludes that they are unexhausted, he may file a motion to dismiss on such grounds, though he is not required to do so.

         BACKGROUND

         According to the petition in 2015 a San Francisco County Superior Court jury convicted petitioner of rape, unlawful sexual intercourse with a minor, pimping a minor, and pandering with a minor. He received a sentence of 8 years and 8 months in state prison.

         DISCUSSION

         This 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. 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).

         As grounds for federal habeas relief, petitioner claims that (1) the police violated his Fifth Amendment rights; (2) defense counsel rendered ineffective assistance; (3) the prosecutor committed misconduct; and (4) his sentence is unconstitutional. When liberally construed, these claims appear to be cognizable.

         CONCLUSION

         1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a Magistrate Judge jurisdiction consent or declination to consent form 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 petitioner.

         2. On or before July 17, 2017, respondent shall file with the Court and serve on petitioner 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.

         3. If 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 thirty (30) days of the date the answer is filed.

         4. In lieu of an answer, respondent may file, within sixty (60) days of the date this order is filed, a motion to dismiss on procedural grounds, 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 the date the motion is filed, and ...


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