Delmonico v. Bonta

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG

8 Petitioner, ORDER TO SHOW CAUSE 9 v.

10 MATTHEW RODRIQUEZ, 11 Respondent.

12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254. Petitioner is challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. 15 His amended petition (Dkt. No. 6) is now before the Court for screening. 16 BACKGROUND 17 On August 24, 2018, Petitioner was convicted in Palo Alto Superior Court of a 18 misdemeanor of disorderly conduct (Cal. Penal Code § 647(a)). Dkt. No. 6 at 1. Petitioner was 19 sentenced to twelve days in county jail without eligibility for LCA home detention; three years of 20 probation with sex offender terms, and mandatory registration on the sex offender registry 21 pursuant to Cal. Penal Code § 290. Dkt. No. 6 at 1. 22 On September 6, 2019, Petitioner appealed his conviction to the appellate division of the 23 superior court, and the appeal was denied on December 7, 2020. Dkt. No. 6 at 1-2. The state 24 appellate court summarily denied the petition for transfer on February 11, 2021. Dkt. No. 6 at 2. 25 Petitioner commenced the instant action or about March 20, 2021. Dkt. No. 1 at 36. 26 DISCUSSION 27 A. Standard of Review 1 custody pursuant to the judgment of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 3 district court considering an application for a writ of habeas corpus shall “award the writ or issue 4 an order directing the respondent to show cause why the writ should not be granted, unless it 5 appears from the application that the applicant or person detained is not entitled thereto.” 28 6 U.S.C. § 2243. 7 B. Claims 8 The amended petition alleges that Petitioner is entitled to federal habeas relief because he 9 was denied his Sixth Amendment right to effective assistance of counsel, and because he was 10 denied his Fifth Amendment right against self-incrimination “when in custody without being 11 Mirandized.” See generally ECF No. 6. Petitioner identifies the following alleged instances of 12 ineffective assistance of counsel: counsel called Nicolas Pittet as a defense witness without vetting 13 Pittet beforehand; counsel failed to effectively examine Pittet; counsel failed to impeach Avila as 14 directed by Petitioner; counsel incorrectly claimed that the Golfsmith was next to the Whole 15 Foods, thereby undermining his credibility with the jury; counsel argued that the primary Miranda 16 argument was the duration of Petitioner’s detention; counsel failed to present to the jury the 17 timelines prepared by Petitioner; counsel failed to question prosecution witnesses in a manner that 18 reflected Petitioner’s detailed accounting of his whereabouts on that day and Petitioner’s 19 understanding as to why Availa had been alerted to Petitioner’s behavior that day; counsel failed 20 to ensure Deputy Chow’s testimony at trial; and counsel advised Petitioner not to testify at trial. 21 Liberally construed, the claims appear cognizable under § 2254 and merit an answer from 22 Respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must 23 construe pro se petitions for writs of habeas corpus liberally). 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows. 26 1. The Clerk shall serve electronically a copy of this order upon the respondent and 27 the respondent’s attorney, the Attorney General of the State of California, at the following email 1 available via the Electronic Case Filing System for the Northern District of California. The Clerk 2 shall serve by mail a copy of this order on Petitioner. 3 2. Respondent shall file with the Court and serve on Petitioner, within ninety-one 4 (91) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 5 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 6 || based on the claims found cognizable herein. Respondent shall file with the answer and serve on 7 Petitioner a copy of all portions of the state trial record that have been transcribed previously and 8 that are relevant to a determination of the issues presented by the petition. 9 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 10 || Court and serving it on Respondent within thirty-five (35) days of the date the answer is filed. 11 3, Respondent may file, within ninety-one (91) days, a motion to dismiss on 12 || procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 5 13 the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file 14 || with the Court and serve on Respondent an opposition or statement of non-opposition within 3 15 twenty-eight (28) days of the date the motion is filed, and Respondent shall file with the Court 16 || and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 3 17 4. Petitioner is reminded that all communications with the Court must be served on 18 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must 19 || keep the Court informed of any change of address and must comply with the Court’s orders in a 20 || timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 21 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 22 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 23 5. Upon a showing of good cause, requests for a reasonable extension of time will be 24 || granted provided they are filed on or before the deadline they seek to extend. 25 IT IS SO ORDERED. 26 || Dated: 6/10/2021 2 Abeuprerd 5 dbl. 28 HAYWOOD S. GILLIAM, JR. United States District Judge