United States District Court, N.D. California, San Francisco Division
ORDER TO SHOW CAUSE Re: ECF Nos. 1, 6
BEELER UNITED STATES MAGISTRATE JUDGE
Wayne Reed, an inmate at the Folsom State Prison, filed this
pro se action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He consented to proceed
before a magistrate judge. (ECF No. 5.) His petition is
now before the court for review pursuant to 28 U.S.C. §
2243 and Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts. This order requires the
respondent to respond to the petition and grants Mr.
Reed's in forma pauperis application.
Reed provides the following information in his petition:
After a jury trial in Lake County Superior Court, Mr. Reed
was convicted of kidnapping during the commission of a
carjacking, kidnapping, and assault with a deadly weapon. In
2016, he was sentenced to 10 years to life in prison.
appealed. The California Court of Appeal affirmed Mr.
Reed's conviction and the California Supreme Court denied
his petition for review. He also filed unsuccessful petitions
for writ of habeas corpus in the state courts. He then filed
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.
federal petition for writ of habeas corpus alleges the
following claims. First, Mr. Reed alleges that he received
ineffective assistance of trial counsel in that counsel
“conceded guilt” and “withdrew a crucial
defense” in closing argument by telling the jury that
jurors “‘need not bother with the jury
instructions because whoever hit [the victim] was guilty of
all the charged offenses.'” (ECF No. 1 at 9.)
Second, Mr. Reed contends that his right to due process was
violated because there was insufficient evidence to support
the conviction in that there was no eye witness or physical
evidence, the victim recanted his identification of Mr. Reed,
and Mr. Reed had an alibi. (ECF No. 1 at 9.) Liberally
construed, these claims are cognizable in a federal habeas
action and warrant a response.
Reed asks the court to take judicial notice of the criminal
case of Ricardo D. Cordova, Lake County Superior Court No. CR
942023, and the appeal therefrom, Cal.Ct.App. No. 154004.
(ECF No. 1 at 17.) He states that the same criminal defense
attorney represented both Mr. Reed and Mr. Cordova in trials
at the same time, and received a judgeship a month after Mr.
Reed's trial. According to Mr. Reed, the defense
attorney's deficiencies can be seen in the Cordova case
as well as his own. The appellate decision is available at
People v. Cordova, 2018 WL 3853925 (Cal.Ct.App.
2018), and shows that the cases are factually unrelated in
that they involve two separate criminal episodes and neither
defendant is listed as a participant in the other's
crimes. The court can judicially notice facts that are not
subject to reasonable dispute in that they are generally
known within the territorial jurisdiction of the court or
they are capable of ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed.R.Evid.
201(b). “As a general rule, a court may not take
judicial notice of proceedings or records in another cause so
as to supply, without formal introduction of evidence, facts
essential to support a contention in a cause then before
it.” M/V Am. Queen v. San Diego Marine Constr.
Corp., 708 F.2d 1483, 1491 (9th Cir. 1983); see also
Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir.
2003), overruled on other grounds by Albino v. Baca,
747 F.3d 1162 (9th Cir. 2014) (“Factual findings in one
case ordinarily are not admissible for their truth in another
case through judicial notice”). This court will not
take judicial notice of the case against Mr. Cordova because
Mr. Reed has not supplied the records from the state court
action against Mr. Cordova and has not shown that the defense
attorney's conduct is something that can be judicially
noticed. This court will, however, read the appellate court
decision in People v. Reed, as it would read any
decision the parties cite in their briefs.
foregoing reasons, 1. The petition warrants a response.
clerk shall serve by mail a copy of this order and the
petition upon 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
clerk also shall serve a copy of the “consent or
declination to magistrate judge jurisdiction” form upon
the respondent and the respondent's ...