United States District Court, N.D. California
ORDER TO SHOW CAUSE DKT. NO. 4
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
Darren Cleveland seeks federal habeas relief under 28 U.S.C.
§ 2254 from his state convictions. The petition for such
relief states cognizable claims. Accordingly, on or before
September 23, 2019, respondent shall file an
answer or a dispositive motion in response to the habeas
2015, an Alameda County Superior Court jury convicted
Cleveland of attempted premeditated murder, shooting from a
vehicle, assault with a deadly weapon, and possession of a
firearm by a felon. A sentence of life with the possibility
of parole, plus a term of 25 years to life, was imposed.
Cleveland appealed. The state appellate court ordered the
abstract of judgment and the clerk's minutes corrected to
reflect that Cleveland had 67 days of local conduct credit
and that the sentence for a firearm enhancement was stayed.
It also remanded the case to the superior court for it to
determine whether a firearm enhancement should be struck. The
judgment was otherwise affirmed. The filings do not indicate
what the result of the resentencing hearing was.
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). A
district court considering an application for a writ of
habeas corpus shall “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243. Summary dismissal is
appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently
frivolous or false. See Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).
grounds for federal habeas relief, Cleveland alleges (i) the
identification procedure was unduly suggestive, in violation
of due process, and its admission at trial was prejudicial;
and (ii) defense counsel rendered ineffective assistance.
These allegations state claims for relief, when liberally
Clerk shall serve a copy of this order, the petition and all
attachments thereto, on respondent and respondent's
counsel, the Attorney General for the State of California.
The Clerk shall also serve a copy of this order on
or before September 23, 2019, respondent
shall file with the Court and serve on petitioner, 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 petitioner's cognizable
claims. Respondent shall file with the answer and serve on
petitioner a copy of all portions of the state trial record
that previously have been transcribed and 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's counsel within thirty (30) days of the date
the answer is filed.
lieu of an answer, respondent may file, on or before
September 23, 2019, a motion to dismiss on
procedural grounds, as set forth in the Advisory Committee
Notes to Rule 4 of the Rules Governing Section 2254 Cases. If
respondent files such a motion, petitioner shall file with
the Court and serve on respondent an opposition or statement
of non-opposition within thirty (30) days of the date the
motion is filed, and respondent shall file with the Court and
serve on petitioner a reply within fifteen (15) days of the
date any opposition is filed.
Petitioner is reminded that all communications with the Court
must be served on respondent by mailing a true copy of ...