Ochoa v. Clark

• Court: District Court, N.D. California
• Decided: June 11, 2021
• Docket: 3:21-cv-04008
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSEPH OCHOA, Case No. 21-cv-04008-SK

8 Plaintiff, ORDER TO SHOW CAUSE 9 v.

10 KEN CLARK, et al., Regarding Docket No. 1 11 Defendants.

12 Petitioner, a state prisoner currently incarcerated at California State Prison – Corcoran, has 13 filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction and 14 sentence from Alameda County Superior Court. 15 BACKGROUND 16 Petitioner was convicted by a jury of lewd act with a child under age 14 (California Penal 17 Code § 288(a), intercourse with a child under age 10 (California Penal Code § 288.7(a), sex 18 offense with a child under 10 (California Penal Code § 288.7(b), continuous sex abuse with a child 19 under age 14 (California Penal Code § 288.5), and lewd act with a minor over age 14 (California 20 Penal Code § 288(e)(1). He was sentenced to 96 years and eight months on October 27, 2017. 21 Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the 22 Supreme Court of California, which on May 27, 2020, denied review of a petition allegedly 23 raising the claims raised here. 24 DISCUSSION 25 A. Standard of Review. 26 This court may entertain a petition for a writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 1 It shall “award the writ or issue an order directing the respondent to show cause why the 2 writ should not be granted, unless it appears from the application that the applicant or person 3 detained is not entitled thereto.” Id. § 2243. 4 B. Claims. 5 Petitioner seeks federal habeas corpus relief by raising claims for ineffective assistance of 6 counsel, denial of due process, violation of the eighth amendment’s prohibition against cruel and 7 unusual punishment. Liberally construed, the claims appear cognizable under § 2254 and merit an 8 answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 9 must construe pro se petitions for writs of habeas corpus liberally). 10 CONCLUSION 11 For the foregoing reasons and for good cause shown, 12 1. The clerk shall serve a copy of this order and the petition and all attachments 13 thereto upon the California Attorney General’s Office, 455 Golden Gate Avenue, Suite 11000, San 14 Francisco, CA 94102. 15 2. Respondent shall file with the court and serve on petitioner, within 60 days of the 16 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 17 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 18 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 19 trial record that have been transcribed previously and that are relevant to a determination of the 20 issues presented by the petition. 21 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with 22 the court and serving it on respondent within 30 days of his receipt of the answer. 23 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 24 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 25 2254 Cases. If respondent files such a motion, petitioner must serve and file an opposition or 26 statement of non-opposition not more than 28 days after the motion is served and filed, and 27 /// 1 respondent must serve and file a reply to an opposition not more than 14 days after the opposition 2 || is served and filed. 3 IT IS SO ORDERED. 4 Dated: June 11, 2021 □ 5 _Atlher lOw~ SALLIE KIM 6 United States Magistrate Judge 7 8 9 10 11 12

© 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28