United States District Court, N.D. California
ORDER LIFTING STAY AND FOR RESPONDENT TO SHOW, DKT.
J. VADAS, United States Magistrate Judge
a California prisoner, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The case was
stayed to petitioner could exhaust additional claims. (Doc.
7.) Petitioner has filed an amended petition and seeks to
lift the stay. (Doc. 9.)
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). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner ... [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
grounds for federal habeas relief, petitioner asserts that:
(1) there was a Fourth Amendment violation with respect to a
pretext call to petitioner's house by the victim; (2)
trial counsel was ineffective for failing to file a motion to
suppress evidence with respect to the pretext call; (3) the
trial court erred in admitting the evidence of the pretext
phone call; (4) ineffective assistance of appellate counsel
for failing to raise the above claims; (5) the trial court
erred in admitting Child Sexual Abuse Accommodation Syndrome
(CSAAS) evidence; (6) the trial court erred in allowing
supplemental arguments by counsel during the jury's
deliberation and counsel was ineffective for failing to
object; and (7) the trial court abused its discretion in
denying petitioner probation.
first claim in the petition regarding the Fourth Amendment
violation is dismissed. Stone v. Powell, 428 U.S.
465, 481-82, 494 (1976), bars federal habeas review of Fourth
Amendment claims unless the state did not provide an
opportunity for full and fair litigation of those claims.
Even if the state courts' determination of the Fourth
Amendment issues is improper, it will not be remedied in
federal habeas corpus actions so long as the petitioner was
provided a full and fair opportunity to litigate the issue.
See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.
1983). California state procedure provides an opportunity for
full litigation of any Fourth Amendment claim. Sixth
Amendment claims based on incompetent representation by
counsel with respect to Fourth Amendment issues may be the
basis for a habeas action and are not barred by Stone v.
Powell. See Kimmelman v. Morrison, 477 U.S.
365, 373-83 (1986). Therefore, the second claim may proceed
as well as the remaining claims, which liberally construed,
are sufficient to require a response.
Petitioner's motion to file an amended petition and lift
the stay (Docket No. 9) is GRANTED. The stay in this case is
LIFTED and the case is REOPENED.
clerk shall serve by regular mail a copy of this order, the
petition (Docket No. 9) and all attachments thereto and a
Magistrate Judge jurisdiction consent form on respondent and
respondent's attorney, the Attorney General of the State
of California. The clerk also shall serve a copy of this
order on petitioner.
Respondent shall file with the court and serve on petitioner,
within fifty-six (56) 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. Respondent shall file
with the answer and serve on petitioner a copy of all
portions of the state trial record that have been transcribed
previously 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
within twenty-eight (28) days of his receipt of the answer.
Respondent may file a motion to dismiss on procedural grounds
in lieu of an answer, as set forth in the Advisory Committee
Notes to Rule 4 of the Rules Governing Section 2254 Cases. If
respondent files such a motion, it is due fifty-six (56) days
from the date this order is entered. If a motion is filed,
petitioner shall file with the court and serve on respondent
an opposition or statement of non-opposition within
twenty-eight (28) days of receipt of the motion, and