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Vasquez-Zapata v. Santoro

United States District Court, N.D. California

July 18, 2017

ETELBERTO VASQUEZ-ZAPATA, Petitioner,
v.
KELLY SANTORO, Respondent.

          ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 4)

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging his state court conviction. His motion for leave to proceed in forma pauperis is Granted. For the reasons discussed below, respondent is ordered to show cause why the petition should not be granted.

         STATEMENT

         Petitioner was convicted in Monterey County Superior Court of first-degree murder and sentenced to a term of 26 years in state prison. His appeals to the California Court of Appeals and the California Supreme Court were denied. Thereafter, petitioner filed the instant federal petition.

         ANALYSIS

         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). 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 which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 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)).

         B. Legal Claims

         Petitioner claims that: (1) his trial counsel was ineffective in failing to object to a limiting instruction to the jury; (2) his trial counsel was ineffective in failing to object to prosecutorial misconduct; (3) his trial counsel was ineffective in failing to secure a jury instruction on voluntary intoxication; (4) his Sixth Amendment rights were violated by the omission of instructions on the prosecutor's burden to disprove self-defense and voluntary manslaughter; and (5) the cumulative effect of the foregoing errors rendered the trial fundamentally unfair. When liberally construed, these claim warrant a response.

         CONCLUSION

         1. The clerk shall mail a copy of this order and the petition with all attachments to 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 petitioner.

         2. Respondent shall file with the court and serve on petitioner, within sixty-three (63) 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 claim found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are relevant to a determination of the issues presented by the petition.

         If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within ...


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