United States District Court, N.D. California
ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS (DKT. NOS. 2, 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. For the reasons discussed below,
respondent is ordered to show cause why the petition should
not be granted. Leave to proceed in forma pauperis is
2017, petitioner was convicted in San Mateo County Superior
Court and is serving a sentence of seven years and in state
prison. His appeal to the California Court of Appeals was
denied. The California Supreme Court denied his petition for
review. His habeas petitions to the California Court of
Appeal 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 conviction and sentence were supported by
insufficient evidence; (2) his right to a jury from a fair
cross-section of his peers was violated by improper exclusion
of African-Americans from the venire; (3) the trial judge
made improper comments to the jury about the evidence; (4)
trial counsel was ineffective in failing to object to an
unrecorded jury instruction, to impeach the victim, or to
move for a mistrial; (5) the trial judge answered a question
to the jury about a matter of law without informing
petitioner, allowing him to object, or recording the answer;
(6) the prosecutor committed misconduct by withholding
exculpatory evidence; (7) appellate counsel provided
ineffective assistance on appeal; and (8) the state appellate
court committed errors in ruling on petitioner's claims.
would appear that the final claim is redundant to the other
claims, but to the extent it does not, respondent should
address it. The other seven claims, when liberally construed,
are cognizable and 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 ninety-one (91) 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