Opinion
Case No. 14-CV-3166-LHK
08-13-2014
VICENTE BUENROSTRO, Petitioner, v. MARION SPEARMAN, Warden of the Soledad Correctional Training Facility Respondent.
ORDER TO SHOW CAUSE
Petitioner Vicente Buenrostro, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 14, 2014. The Court will require Respondent to show cause why a writ of habeas corpus should not be granted.
DISCUSSION
A. 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court 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.
B. Petitioner's Claims
Petitioner was convicted of two counts of continuous sexual abuse with special allegations that the offenses involved multiple victims, one count of oral copulation of a person under 14, and one count of sexual penetration of a person under 14 by a foreign object in Alameda County Superior Court. ECF No. 3, Ex. F. at 1. The Superior Court sentenced Petitioner to 18 years in state prison. Petitioner seeks federal habeas relief under 28 U.S.C. § 2254. In his petition, Petitioner contends he is entitled to habeas relief because his counsel, the prosecution, and the Superior Court affirmatively misled him about his sentencing exposure by miscalculating the maximum possible sentence. Petitioner contends that had it not been for this miscalculation, he would have been able to secure a plea agreement that was more favorable than the 18-year sentence he received after trial. ECF No. 2 at 2-3. Accordingly, Petitioner contends in that his rights to effective assistance of counsel under the Sixth and Fourteenth Amendments and in his rights to due process under the Fifth and Fourteenth Amendments were violated by the miscalculation of his sentencing exposure. Id. at 2. Liberally construed, the petition states a cognizable claim for relief.
ORDER
Good cause appearing, the Court hereby orders the following:
1. The Clerk of the Court shall serve a copy of this Order and the petition and all attachments thereto upon Respondent and Respondent's counsel, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner and Petitioner's counsel.
2. Respondent shall serve and file with the Court, within sixty (60) 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. Respondent shall serve and file with the answer a copy of all portions of the state record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the answer.
3. Respondent may serve and file a motion to dismiss on procedural grounds in lieu of an answer, 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 to the motion within thirty (30) days of receipt of the motion, and respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.
IT IS SO ORDERED.
Dated: August 13, 2014
/s/________
LUCY H. KOH
United States District Judge