Opinion
No.C 14-01109 HRL (PR)
08-15-2014
JOSE MONSIVAIS, Petitioner, v. KNIPP, Respondent.
ORDER TO SHOW CAUSE
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has been granted leave to proceed in forma pauperis. (See Docket No. 8.)
BACKGROUND
According to the petition, Petitioner was found guilty of two counts of premeditated attempted murder, two counts of attempted murder of a public official, two counts of felony assault with a firearm on a peace officer, shooting at an occupied vehicle, three counts of auto theft, unlawful possession of a loaded firearm, three counts of robbery, and carjacking by a jury in Monterey County Superior Court. (Pet. Attach, at 3-4.) Petitioner was sentenced to a total term of 30 years to life, plus 54 years, in early 2006. (Pet. at 2.) Petitioner appealed his conviction, with the state appellate court affirming the judgment and the state high court denying review in 2007. (Id. at 3.) Petitioner did not pursue any collateral appeals.
Petitioner filed the instant federal habeas petition on March 10, 2014.
DISCUSSION
A. Standard of Review
This court may entertain a petition for a 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).
It 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." Id. § 2243. B. Legal Claims
Petitioner claims that he received ineffective assistance of counsel during closing argument. Liberally construed, this claim is cognizable under § 2254 and merits an answer from Respondent.
CONCLUSION
For the foregoing reasons and for good cause shown,
1. The Clerk shall serve by certified mail a copy of this order and the petition (Docket No. 1) and all attachments thereto 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 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 issued. 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 thirty (30) 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, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition 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.
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 also keep the Court and all parties informed of any change of address. DATED: 8/15/14
/s/_______
HOWARD R. LLOYD
United States Magistrate Judge
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 15, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Jose Monsivais F-19006
Mule Creek State Prison
P.O. Box 409060
lone, CA 95640
Dated: August 15, 2014
/s/_______
Richard W. Wieking, Clerk