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Hicks v. Hatton

United States District Court, N.D. California

May 30, 2017

GARY LEE HICKS, Petitioner,
v.
S. HATTON, Warden, Respondent.

          ORDER TO SHOW CAUSE

          EDWARD J. DAVILA United States District Judge

         Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

         BACKGROUND

         According to the petition, Petitioner was found guilty by a jury in Monterey County Superior Court of second degree murder. (Pet. Attach. at 2.) Petitioner was sentenced on September 15, 1983, to a term of 15 years-to-life. (Pet. at 1.)

         Petitioner appealed his conviction to the state appellate court, and then to the state high court which denied review in 1985. (Pet. at 3.) Petitioner filed state habeas petitions, which were also denied. (Id. at 3-4.)

         Petitioner filed a petition in the “Northern District Court of Appeals, ” which was also denied.[1] (Pet. at 4.)

         Petitioner filed the instant petition on February 24, 2017.

         DISCUSSION

         A. Standard of Review

         This court may entertain a petition for a 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).

         It 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.” Id. § 2243.

         B. Legal Claims

         Petitioner asserts new evidence supports the petition, specifically: (1) prosecutorial misconduct by the use of an informant's false testimony; and (2) the trial court erred in admitting the “electrophoresis” evidence because the process was not reliable and the defense was disallowed an independent test because the prosecution consumed all available sample. (Pet. Attach. at ...


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