Contreras v. Gamboa

Opinion

1 2 3 4 5 6 7 10 ERNESTO M. CONTRERAS, 11 Case No. 20-06206 BLF (PR) Petitioner, v. 13

14 ROSEMARY NDOH, Warden, 15 Respondent.

17 Petitioner, a California inmate, filed a pro se petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, challenging his state conviction in Santa Clara County 19 Superior Court.1 Dkt. No. 1. Petitioner requested a stay to exhaust a new claim involving 20 a polygraph test in state court, which the Court denied without prejudice to filing a 21 renewed motion for a stay that satisfied the factors under Rhines v .Weber, 544 U.S. 269 22 (2005). Dkt. No. 7. Petitioner was advised that if he failed to file a renewed motion in the 23 time provided, the matter would proceed on the cognizable claims. Id. at 2. The time for 24 filing a renewed motion has passed with no response from Petitioner. Accordingly, this 25 matter will proceed on the exhausted claims identified below. 26 27 2 I. Standard of Review 3 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 4 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. 5 § 2254(a). 6 It shall “award the writ or issue an order directing the respondent to show cause 7 why the writ should not be granted, unless it appears from the application that the applicant 8 or person detained is not entitled thereto.” Id. § 2243. 9 II. Analysis 10 Petitioner claims the following grounds for habeas relief: (1) the trial court 11 incorrectly imposed consecutive sentencing under state law; (2) the state appellate court 12 denied him due process by failing to remand the matter after the trial court incorrectly 13 imposed consecutive sentences; and (3) there was insufficient evidence to support Count 3, 14 aggravated sexual assault of a child, in violation of his right to a fair trial and due process. 15 Dkt. No. 1 at 5. Liberally construed, these claims are cognizable under § 2254 and merit 16 an answer from Respondent. 17

18 CONCLUSION 19 For the foregoing reasons and for good cause shown, 20 1. The Clerk shall serve electronically a copy of this order upon the Respondent 21 and the Respondent’s attorney, the Attorney General of the State of California, at the 22 following email address: SFAWTParalegals@doj.ca.gov. The petition and any exhibits 23 thereto are available via the Electronic Case Filing System for the Northern District of 24 California. The Clerk also shall serve a copy of this order on Petitioner. 25 2. Respondent shall file with the court and serve on Petitioner, within ninety 26 (90) days of the issuance of this order, an answer conforming in all respects to Rule 5 of 1 || the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 2 || should not be issued. Respondent shall file with the answer and serve on Petitioner a copy 3 || ofall portions of the state trial record that have been transcribed previously and that are 4 || relevant to a determination of the issues presented by the petition. 5 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 6 || the Court and serving it on Respondent within thirty (30) days of his receipt of the 7 || answer. 8 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an g || answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 10 || Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court 11 || and serve on Respondent an opposition or statement of non-opposition within twenty- 2 eight (28) days of receipt of the motion, and Respondent shall file with the court and serve E 13 || on Petitioner a reply within fourteen (14) days of receipt of any opposition. S 14 4. It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded 3 15 || that all communications with the Court must be served on Respondent by mailing a true A 16 || copy of the document to Respondent’s counsel. Petitioner must keep the Court and all 5 17 || parties informed of any change of address by filing a separate paper captioned “Notice of 5 18 || Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure 19 || to do so may result in the dismissal of this action for failure to prosecute pursuant to 20 || Federal Rule of Civil Procedure 41(b). 22 || Dated: _February 23, 2021 fede Ley. bacae 33 BETH ABSON FREEMAN United States District Judge 24 Order to Show Cause PRO-SE\BLF\HC.20\06206Contreras_osc 25 26 27