United States District Court, N.D. California
ORDER TO SHOW
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. For the reasons discussed below,
respondent is ordered to show cause why the petition should
not be granted.
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.
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) 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.
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
within twenty- ...