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Toscano v. Lizarraga

United States District Court, N.D. California

July 27, 2017

EVARISTO TOSCANO, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

          ORDER TO SHOW

          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. For the reasons discussed below, respondent is ordered to show cause why the petition should not be granted.

         STATEMENT

         Petitioner was convicted in Alameda County Superior Court of one count of first-degree murder and three counts of attempted murder, and firearm allegations related to those convictions were found true. His appeals to the California Court of Appeals and the California Supreme Court were denied. He habeas petition in the state courts was also 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) the admission of a double hearsay statement by a witness violated various constitutional provisions and was not harmless error; (2) the police lost material exculpatory evidence; (3) there was not adequate “comparable” evidence to the exculpatory recorded interviews that were lost; (4) there was evidence that the recorded interviews were lost in bad faith; (5) his right to due process was violated because the trial court did not allow him to file a motion to sever, which would have been meritorious under California law; (6) the trial judge's comments while cross-examining an expert witness violated his right to due process and to a jury trial; and (7) petitioner did not receive effective assistance of counsel at trial. 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 twenty- ...


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