Rich v. Pfeiffer

• Court: District Court, N.D. California
• Decided: May 13, 2022
• Docket: 3:22-cv-02087
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALBERT E. RICH, Case No. 22-cv-02087-JD

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

10 CHRISTIAN PFEIFFER, Respondent. 11

12 13 Albert Rich, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. The mixed petition was dismissed with leave to amend, and petitioner has filed 15 a response. 16 BACKGROUND 17 A jury found petitioner guilty of thirteen felony offenses involving human trafficking for 18 commercial sex, torture and various sexual offenses. People v. Rich, No. A155040, 2021 WL 19 221961, at *1 (Cal. Ct. App. Jan. 22, 2021). Petitioner was sentenced to a prison term of 159 20 years to life. Id. The California Court of Appeal affirmed the conviction. Id. The California 21 Supreme Court denied review. Petition at 3. Petitioner states that he filed no other appeals or 22 habeas petitions. Id. 23 DISCUSSION 24 STANDARD OF REVIEW 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 2 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 3 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 4 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 5 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 6 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 7 688, 689 (1st Cir. 1970)). 8 LEGAL CLAIMS 9 The original petition presented fifteen claims, but it appeared that only three claims were 10 exhausted. The exhausted claims asserted that: 1) the prosecutor committed misconduct and 11 violated petitioner’s right to confront witnesses during opening arguments by referring to 12 statements of witnesses who did not testify; 2) the prosecutor committed misconduct and violated 13 petitioner’s rights by asking improper questions to a witness; and 3) the cumulative effect of the 14 prosecutor’s opening statement and the improper witness questioning violated petitioner’s rights. 15 Petitioner was informed that he could either demonstrate that the unexhausted claims had 16 been exhausted, continue only with the exhausted claims and dismiss the unexhausted claims or 17 file a motion for a stay. Petitioner has filed a response (Dkt. No. 7) and indicates he wishes to 18 continue with the exhausted claims. The unexhausted claims are dismissed from the petition and 19 liberally construed, the above three claims are sufficient to require a response. 20 CONCLUSION 21 1. The Clerk shall serve by electronic mail a copy of this order on the Attorney 22 General of the State of California at SFAWTParalegals@doj.ca.gov. The Clerk also shall serve 23 a copy of this order on petitioner by regular mail. Respondent can view the petition on the 24 electronic docket (Dkt. No. 1). 25 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 26 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 27 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 1 trial record that have been transcribed previously and that are relevant to a determination of the 2 || issues presented by the petition. 3 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 4 || Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 5 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 6 || answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 7 2254 Cases. If respondent files such a motion, it is due sixty (60) days from the date this order is 8 || entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an 9 opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 10 || and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days 11 of receipt of any opposition. 12 4. Petitioner is reminded that all communications with the Court must be served on 5 13 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 14 || the Court informed of any change of address and must comply with the Court’s orders in a timely 15 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 16 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 3 17 1997) (Rule 41(b) applicable in habeas cases). IT IS SO ORDERED. 19 Dated: May 13, 2022 20 21 JAMES D®@MATO 22 United Stf#tes District Judge 23 24 25 26 27 28