Serna v. Holbrook

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NORBERTO SERNA,

Case No. 21-cv-02654-JSC

Plaintiff, v. ORDER TO SHOW CAUSE

DAVID HOLBROOK, et al., Re: Dkt. No. 1

Defendants.

Petitioner, a prisoner of the State of California, filed a habeas corpus petition pursuant to 28 14 U.S.C. § 2254. Petitioner has paid the $5.00 filing fee. His petition sets forth 14 claims challenging the constitutionality of Petitioner’s conviction in state court: that his conviction for kidnapping to commit robbery is not supported by sufficient evidence; his conviction for kidnapping to convict extortion is not supported by sufficient evidence; the trial court erred in denying his motion to set aside information; the trial court erred in denying his motion to suppress evidence; the trial court erred in admitting his statement obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); the trial court erred in admitting his involuntary statement; the trial court erred in admitting the hearsay statement of Isaias Serna; the kidnapping for extortion jury instruction was improper; his sentence was disproportionate; his sentence is an Equal Protection violation; trial counsel was ineffective in not challenging the search warrant of his historical cell phone site location information; his statement was involuntary because he was not informed of his right to consular notification under the Vienna Convention; trial counsel was ineffective in failing to argue that this violation resulted in Petitioner making an involuntary statement; and that these cumulative errors require reversal of his convictions and sentence.

1 cause appearing, Respondent is hereby ordered to show cause why the petition should not be || granted.

3 In order to expedite the resolution of this case, it is further ordered as follows: 4 1. The Clerk shall serve respondent and the respondent’s attorney, the Attorney General of the State of California, with a copy of this order and the petition with all attachments.

6 2. Consistent with Habeas Local Rule 2254-6, Respondent shall file with the court and serve on petitioner, within 60 days of service of the petition and this order, 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 based on the claims found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

13 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the || court and serving it on Respondent within 30 days of the date the answer is filed.

15 3. Respondent may file, within 60 days, 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 17 Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and S 18 serve on respondent an opposition or statement of non-opposition within 30 days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within 14 days of the date any opposition is filed.

4. The Clerk shall send a notice to petitioner and respondent regarding consenting to the jurisdiction of a magistrate judge.

IT IS SO ORDERED.

Dated: May 5, 2021 we

ACQUELINE SCOTT COREY United States Magistrate Judge