Diaz v. Covello

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA SURIAL DIAZ, Case No. 21-cv-00137-SVK 8 Plaintiff, ORDER TO SHOW CAUSE 9 v. 10 PATRICK COVELLO, 11 Defendant.

13 Petitioner Surial Diaz seeks federal habeas relief under 28 U.S.C. § 2254 from his state conviction and sentence. The Court orders respondent to show cause why the petition should not be granted.

16 DISCUSSION A. Standard of Review 18 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person 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. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

24 Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 26 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

27 B. Petitioner’s Claims 1 (1)(a) Petitioner’s Sixth Amendment right to confront the witness against him was 2 violated, see Dkt. 1 at 22-45; 3 (1)(b) Petitioner’s right to due process was violated because evidence that the complaining 4 witness had previously made a false accusation of having been molested was 5 excluded, see id. at 22-45; 6 (2) Petitioner’s right to due process was violated because the judge's finding that each of 7 the counts had been committed on separate occasions was not supported by 8 sufficient evidence, see id. at 45-48; 9 (3) Petitioner’s Sixth Amendment and Fourteenth Amendment rights were violated 10 because the minimum and maximum term of each subordinate count was increased 11 based upon facts found by a judge, not a jury, see id. at 49-56; 12 (4) Petitioner’s Fourteenth Amendment rights were violated by the court of appeal’s 13 denial of petitioner’s motion to augment the record with a reporter’s transcript of 14 jury selection, see id. at 61-69.

15 Liberally construed, petitioner has stated cognizable claims for relief. The Court orders respondent to show cause why the petition should not be granted as to these claims.

17 CONCLUSION 18 1. The Clerk shall serve electronically a copy of this order upon the respondent and the respondent’s attorney, the Attorney General of the State of California, at the following email address: [email protected]. The Petition and the attachments thereto are available via the Electronic Case Filing System for the Northern District of California.

22 2. Respondent shall file with the Court and serve on petitioner, within sixty days of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

25 Respondent shall file with the answer and serve on petitioner a copy of all portions of the underlying state criminal record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the twenty-eight days of the date the answer is filed.

2 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section || 2254 Cases, within sixty days of the date this order is filed. If respondent files such a motion, || petitioner shall file with the Court and serve on respondent an opposition or statement of non- opposition within twenty-eight days of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within fourteen days of the date any opposition is filed.

8 4. It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that all || communications with the Court must be served on respondent by mailing a true copy of the || document to respondent’s counsel. Petitioner must keep the Court and all parties informed of any 11 change of address by filing a separate paper captioned “‘Notice of Change of Address.” He must || comply with the Court’s orders in a timely fashion. Failure to do so will result in the dismissal of 13 this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

14 5. Respondent shall file his Consent or Declination to Magistrate Judge Jurisdiction 15 on or before the date his answer is due. This form can be found at || www.cand.uscourts.gov/civilforms.

SO ORDERED.

18 |) Dated: March 10, 2021 20 Sess vet SUSAN VAN KEULEN 21 United States Magistrate Judge