Cabrera v. Clark

• Court: District Court, N.D. California
• Decided: April 7, 2021
• Docket: 3:21-cv-01296
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OSCAR AMEZCUA CABRERA, Case No. 21-cv-01296-JD

8 Plaintiff, ORDER FOR RESPONDENT TO 9 v. SHOW CAUSE

10 KEN CLARK, Defendant. 11

12 13 Oscar Cabrera, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant 14 to 28 U.S.C. § 2254. Petitioner was convicted in Santa Cruz County, which is in this district, so 15 venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing fee. 16 BACKGROUND 17 Petitioner was found guilty by a jury of murder for the benefit of a criminal street gang. 18 People v. Cabrera, No. H044409, 2019 WL 2723175, at *1 (Cal. Ct. App. June 28, 2019). The 19 trial court found that petitioner had prior convictions and sentenced him to life in prison without 20 the possibility of parole. Id. The California Court of Appeal affirmed the conviction. Id. The 21 California Supreme Court denied review. Petition at 3. 22 DISCUSSION 23 STANDARD OF REVIEW 24 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 27 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 1 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 2 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 3 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 4 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 5 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 6 688, 689 (1st Cir. 1970)). 7 LEGAL CLAIMS 8 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erred in 9 admitting a dying declaration from the victim into evidence; and (2) his rights were violated due to 10 outrageous governmental conduct during the investigation that requires reversal or in the 11 alternative the trial court erred by not excluding the related evidence. Liberally construed, these 12 claims are sufficient to require a response. 13 CONCLUSION 14 1. The clerk shall serve by electronic mail a copy of this order on the Attorney 15 General of the State of California at SFAWTParalegals@doj.ca.gov. The clerk also shall serve a 16 copy of this order on petitioner by regular mail. Respondent can view the petition on the 17 electronic docket (Docket No. 1). 18 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 19 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 20 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 21 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 22 trial record that have been transcribed previously and that are relevant to a determination of the 23 issues presented by the petition. 24 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 25 Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 26 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 27 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 1 entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an 2 || opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 3 and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days 4 || of receipt of any opposition. 5 4. Petitioner is reminded that all communications with the Court must be served on 6 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 7 || the Court informed of any change of address and must comply with the Court’s orders in a timely 8 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 9 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 10 1997) (Rule 41(b) applicable in habeas cases). 11 IT IS SO ORDERED. 12 || Dated: April 7, 2021

14 JAMES TO IS United Stfftes District Judge 16

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