United States District Court, N.D. California
ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 4)
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
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.
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.
Standard of Review
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)).
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.
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
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.
petitioner wishes to respond to the answer, he shall do so by
filing a traverse with the court and serving it on respondent