Opinion
Case No. 18-cv-0879-RMI (PR)
03-12-2018
DEREK A. HAFELINGER, Petitioner, v. WARDEN SCOTT FRAUENHEIM, Respondent.
ORDER FOR RESPONDENT TO SHOW CAUSE
Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Alameda County, so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner has paid the filing fee and consented to the jurisdiction of a Magistrate Judge.
BACKGROUND
Petitioner was convicted of multiple counts of oral copulation with, and the continuous sexual abuse of, his step-daughter. People v. Hafelfinger, No. A148236, 2017 WL 3124435, at *1 (Cal. Ct. App. July 24, 2017). He was sentenced to twenty-one years to life in prison. Id. His appeals to the California Court of Appeal and California Supreme Court were denied. Petition at 2-3.
DISCUSSION
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). 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 available to the petitioner ... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 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)).
Legal Claims
As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erred in admitting evidence of images of child pornography because they were obtained in an unlawful search; (2) the trial court abused its discretion in admitting the images and petitioner received ineffective assistance of counsel for this claim; (3) it was an error to admit evidence that petitioner watched adult pornography on the family computer and petitioner received ineffective assistance of counsel for this claim; (4) it was an error to admit evidence that the victim saw petitioner throw a knife across the kitchen and petitioner received ineffective assistance of counsel for this claim; (5) trial counsel was ineffective for failing to seek permission to impeach the victim; (6) the trial court erred in refusing to allow petitioner to cross-examine the victim cornering an alternate source of her knowledge of sex acts; (7) the trial court erred in denying petitioner's motion for a new trial and petitioner received ineffective assistance of counsel for this claim; and (8) the cumulative error of the above claims requires reversal. Liberally construed these claims are sufficient to require a response.
CONCLUSION
1. The clerk shall serve by regular mail a copy of this order, the petition and all attachments thereto and a Magistrate Judge jurisdiction consent form on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner.
2. Respondent shall file with the court and serve on petitioner, within fifty-six (56) 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 file with the answer and serve on petitioner a copy of all portions of the state trial 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 twenty-eight (28) days of his receipt of the answer.
3. Respondent may 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, it is due fifty-six (56) days from the date this order is entered. If a motion is filed, petitioner shall file with the court and serve on respondent an opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within fourteen (14) days of receipt of any opposition.
4. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
IT IS SO ORDERED. Dated: March 12, 2018
/s/_________
ROBERT M. ILLMAN
United States Magistrate Judge