1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIC J. LIVELY, BF9502. Case No. 21-cv-04222-SK (PR)

8 Petitioner, ORDER TO SHOW CAUSE 9 v.

10 S. PEERY, Warden, 11 Respondent.

12 Petitioner, a state prisoner incarcerated at the California Correctional Center (CCC), has 13 filed a pro se first amended petition for a writ of habeas corpus under

(FAP) 14 challenging a conviction and sentence from Humboldt County Superior Court. Petitioner also has 15 filed a motion for discovery claiming good cause under Rule 6(a) of the Federal Rules Governing 16 Section 2254 Cases, 28 U.S.C. foll. § 2254. 17 The petition is properly before the undersigned for initial review because Petitioner has 18 consented to the jurisdiction of a magistrate judge pursuant to

(c). 19 BACKGROUND 20 On March 28, 2018, Petitioner was sentenced to 15 years to life in state prison after a jury 21 found him guilty of second-degree murder. Petitioner appealed. 22 On April 15, 2019, the California Court of Appeal affirmed the judgment of the superior 23 court and on July 24, 2019, the Supreme Court of California denied review. 24 On June 3, 2021, after unsuccessfully seeking habeas relief from the state courts via 25 numerous state petitions, Petitioner filed the instant federal action for a writ of habeas corpus 26 under § 2254 and a motion to stay proceedings under Rhines v. Weber,

(2005), so he 27 could exhaust in the state courts additional claims of ineffective assistance of counsel and 1 On June 21, 2021, the Court granted the motion for a stay of these federal proceedings 2 under Rhines and instructed Petitioner to return to federal court and move to lift the stay after he 3 exhausts his additional claims in the state courts. 4 On February 24, 2022, Petitioner filed a first amended petition for a writ of habeas corpus 5 under § 2254 and a motion for discovery claiming good cause under Rule 6(a).1 6 DISCUSSION 7 A. Standard of Review 8 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 9 custody pursuant to the judgment of a State court only on the ground that he is in custody in 10 violation of the Constitution or laws or treaties of the United States.”

(a). 11 It shall “award the writ or issue an order directing the respondent to show cause why the 12 writ should not be granted, unless it appears from the application that the applicant or person 13 detained is not entitled thereto.”

§ 2243. 14 B. Claims 15 Petitioner seeks federal habeas corpus relief by raising thirteen claims for relief in the FAP, 16 including prosecutorial misconduct, ineffective assistance of trial counsel, instructional error, 17 insufficiency of the evidence, juror misconduct and denial of counsel on direct appeal. Liberally 18 construed, the claims appear arguably cognizable under § 2254 and merit an answer from 19 Respondent. See Zichko v. Idaho,

(9th Cir. 2001) (federal courts must 20 construe pro se petitions for writs of habeas corpus liberally). Petitioner’s motion for discovery 21 also merits a response from Respondent. 22 CONCLUSION 23 For the foregoing reasons and for good cause shown, 24 1. The clerk shall serve electronically (1) a copy of this order and (2) a notice of 25 assignment of prisoner case to a United States magistrate judge and accompanying magistrate 26 judge jurisdiction consent or declination to consent form (requesting that Respondent consent or 27 1 decline to consent within 28 days of receipt of service) upon Respondent and Respondent’s 2 attorney, the Attorney General of the State of California, at the following email address: 3 [email protected]. The operative petition (FAP, ECF No. 17) and the motion for 4 || discovery (ECF No. 18) are available via the Electronic Case Filing System for the Northern 5 District of California. The clerk shall serve by mail a copy of this order on Petitioner. 6 2. Respondent shall file with the Court and serve on Petitioner, within 60 days of the 7 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 8 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted, and a 9 || response to Petitioner’s motion for discovery. Respondent shall file with the answer and serve on 10 || Petitioner a copy of all portions of the state trial record that have been transcribed previously and 11 that are relevant to a determination of the issues presented by the operative petition. 12 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 5 13 Court and serving it on Respondent within 30 days of his receipt of the answer. 14 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 3 15 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 16 || 2254 Cases. If Respondent files such a motion, Petitioner must serve and file an opposition or 3 17 statement of non-opposition not more than 28 days after the motion is served and filed, and 18 Respondent must serve and file a reply to an opposition not more than 14 days after the opposition 19 is served and filed. 20 4. Petitioner is reminded that all communications with the Court must be served on 21 Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must also 22 || keep the Court and all parties informed of any change of address. 23 IT IS SO ORDERED. 24 Dated: March 18, 2022 . . 25 Attar fav- 6 SALLIE KIM United States Magistrate Judge 27 28