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Yim v. Lizarraga

United States District Court, N.D. California

May 11, 2017

ROBERT D. YIM, Petitioner,
v.
JOE A. LIZARRAGA, Warden, Respondent.

          ORDER TO SHOW CAUSE

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Robert Yim, a prisoner at Mule Creek State Prison, filed a pro se amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His amended 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. He has paid the $5.00 filing fee.

         BACKGROUND

         In 2014, an Alameda County jury found petitioner guilty of second degree murder and multiple attempted murders, and found true certain sentencing enhancements. He was sentenced to 87 years to life in state prison. Petitioner appealed. In 2015, the California Court of Appeal affirmed the judgment, and the California Supreme Court denied review. Petitioner also filed various habeas petitions in the state courts. On June 27, 2016, petitioner filed the instant action.

         DISCUSSION

         A. Standard of Review

         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); Rose v. Hodges, 423 U.S. 19, 21 (1975).

         A district court 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.

         B. Petitioner's Claims

         As grounds for federal habeas relief, petitioner claims: (1) the prosecutor committed misconduct by posing inflammatory questions to a witness; (2) the trial court erred in denying petitioner's request to represent himself and/or appoint new counsel at sentencing for the purpose of raising a motion for a new trial; (3) the sentence constitutes cruel and unusual punishment; (4) trial counsel rendered ineffective assistance by failing to give petitioner an opportunity to respond to a plea deal offered by the prosecution; and (5) trial counsel rendered ineffective assistance by failing to put petitioner on the stand, despite petitioner's desire to testify. Liberally construed, petitioner's claims appear cognizable under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally).

         CONCLUSION

         1. The Clerk shall serve by mail a copy of this order and the amended petition and all attachments thereto (Docket No. 15), as well as a magistrate judge jurisdiction consent form, 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 petitioner.

         2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days of the issuance of this order, 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 the claims found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record ...


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