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Taylor v. Martel

United States District Court, N.D. California

October 17, 2019

JOSEPH TAYLOR, Petitioner,
v.
MICHAEL MARTEL, Respondent.

          ORDER TO SHOW CAUSE

          RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions. The petition for habeas relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

         The operative petition states cognizable claims. Respondent shall file a response to that petition on or before January 20, 2020, unless an extension is granted.

         It appears petitioner has not exhausted his claims. Respondent is directed to consider whether the claims have been exhausted. If they have not, respondent may wish to file a motion to dismiss on nonexhaustion grounds.

         BACKGROUND

         In 2015, a San Francisco County Superior Court jury convicted petitioner of assault with intent to commit forcible sodomy or forcible oral copulation, felony false imprisonment, misdemeanor false imprisonment, and misdemeanor sexual battery. A sentence of 18 years was imposed. Petitioner filed an appeal in the state appellate court, which was denied. It is unclear whether he ever presented his claims to the state supreme court.

         DISCUSSION

         I. 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). 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).

         II. Claims

         The Court reinstates the second amended petition (Dkt. No. 12) as the operative petition.[1] In that filing, petitioner has made it clear he wishes to proceed only on the claims he raised on direct appeal. Therefore, as grounds for federal habeas relief, petitioner alleges (i) there was insufficient evidence to support his conviction under Cal. Penal Code § 220; and (ii) the trial court violated his constitutional rights by failing to declare a mistrial after the jury heard prejudicial testimony, and then by giving flawed jury instructions. When liberally construed, these claims are cognizable on federal habeas review.

         The second amended petition does not contain a copy of petitioner's state appellate brief, though petitioner provided such a copy in other filings. For the convenience of the parties, the ...


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