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 Plaintiff, ORDER TO SHOW CAUSE; RESETTING BRIEFING SCHEDULE 9 v.

10 ROB BONTA, 11 Defendant.

12 13 Petitioner has filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254 challenging his 2018 state court misdemeanor conviction from Santa Clara County 15 Superior Court. In light of Respondent’s recent filing stating that Petitioner’s claims are 16 exhausted and that this action is not moot, the Court orders as follows. 17 1. The Court VACATES the current briefing deadline. Petitioner need not file the 18 responsive brief ordered in the Court’s February 16, 2024 Order (Dkt. No. 34). 19 2. The Court ORDERS Respondent to answer the operative petition. The Court has 20 screened the operative petition, Dkt. No. 30, and found that it states the following cognizable 21 claims. 22 First, the petition alleges that trial counsel was ineffective in the following ways: (1) when 23 he called Nicolas Pittet as a defense witness without vetting Pittet beforehand; (2) when he lost his 24 composure after calling Pittet as witness, admitted that Pittet’s prejudicial testimony lost the case 25 for Petitioner, and failed to effectively cross-examine Pittet; (3) when he failed to effectively 26 impeach witnesses Avila and Cuellar as directed by Petitioner; (4) when he undermined his 27 credibility with the jury and caused prejudicial error to Petitioner by cross-examining the 1 judge that the primary Miranda argument was the duration of Petitioner’s detention; (6) when 2 counsel failed to present to the jury the timelines prepared by Petitioner that would have cast 3 doubt on Avila’s testimony; (7) when he failed to cross-examine prosecution witnesses, as 4 directed by Petitioner, with a detailed accounting of Petitioner's whereabouts and events on that 5 day that may have led to Availa’s misperception of Petitioner’s behavior that day; (8) when he 6 failed to ensure Deputy Chow’s testimony at trial; (9) when he advised Petitioner not to testify at 7 trial; and (10) when he failed to communicate with the probation officer and judge before and 8 during sentencing about discrepancies between the presentencing report and Petitioner’s written 9 statements provided to the probation officer prior to the pre-sentencing meeting. 10 Second, the petition alleges that Petitioner was denied his Fifth Amendment right against 11 self-incrimination when he was retained in custody and interrogated by law enforcement officers 12 without being Mirandized. 13 Third, the petition alleges cumulative error from the above claims – trial counsel’s 14 ineffective assistance and the failure to provide him with Miranda warnings prior to interrogation. 15 3. The Court orders Respondent to file with the Court and serve on Petitioner, within 16 ninety-one (91) days of the issuance of this order, an answer conforming in all respects to Rule 5 17 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 18 not be granted based on the claim(s) found cognizable herein. Respondent shall file with the 19 answer and serve on Petitioner all documents that are relevant to a determination of the issues 20 presented by the petition. 21 If Petitioner wishes to respond to the answer, he shall do so by filing a reply with the Court 22 and serving it on Respondent within thirty-five (35) days of the date the answer is filed. 23 Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural 24 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 25 Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the 26 Court and serve on Respondent an opposition or statement of non-opposition within twenty-eight 27 (28) days of the date the motion is filed, and Respondent shall file with the Court and serve on 1 4. Petitioner is reminded that all communications with the Court must be served on 2 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must 3 || keep the Court informed of any change of address and must comply with the Court’s orders in a 4 || timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 5 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 6 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 7 IT IS SO ORDERED. 8 || Dated: 4/22/2024 | ° HAYWOOD S. GILLIAM, JR. 10 United States District Judge 11 a 12

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