1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALBERTO HERNANDEZ CARBAJAL, Case No. 22-cv-01486-JD

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

10 THE PEOPLE, Re: Dkt. No. 2 Respondent. 11

12 13 Alberto Carbajal, a state prisoner, filed a pro se petition for a writ of habeas corpus 14 pursuant to

. Petitioner was convicted in Del Norte County, which is in this 15 district, so venue is proper here. See

(d). 16 BACKGROUND 17 Petitioner was found guilty of sixteen counts of assault in connection with attacks on eight 18 different correctional officers during a riot at Pelican Bay State Prison where petitioner was 19 incarcerated. People v. Carbajal, No. A161025,

, at *1 (Cal. Ct. App. Dec. 6, 20 2021). Petitioner was sentenced to 59 years to life consecutive to the life sentence he was already 21 serving.

. The California Court of Appeal found there was insufficient evidence to support 22 eight of the counts but affirmed the remaining counts.

. The California Supreme Court 23 denied review. Petition at 3. 24 DISCUSSION 25 STANDARD OF REVIEW 26 This Court may entertain a petition for 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 Hodges,

(1975). Habeas corpus petitions must meet heightened pleading 2 requirements. McFarland v. Scott,

(1994). An application for a federal writ of 3 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 4 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 5 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases,

. “‘[N]otice’ 6 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 7 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine,

688, 689 (1st Cir. 1970)). 9 LEGAL CLAIMS 10 As grounds for federal habeas relief, petitioner appears to assert that: (1) there was 11 insufficient evidence to support the conviction of assault against Officer McCully; (2) trial counsel 12 was ineffective for failing to timely disclose to the prosecution that an expert witness would be 13 testifying; and (3) the trial court violated his right to prepare a defense by refusing to allow him to 14 call experts on corrections and the effects of pepper spray. Liberally construed, these claims are 15 sufficient to require a response. If these are not the claims petitioner wishes to proceed with, he 16 must inform the Court within fourteen days of service of this order. 17 CONCLUSION 18 1. The motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED. The Clerk 19 shall serve by electronic mail a copy of this order on the Attorney General of the State of 20 California at [email protected]. The Clerk also shall serve a copy of this order on 21 petitioner by regular mail. Respondent can view the petition on the electronic docket (Dkt. No. 1). 22 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 23 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 24 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 state 26 trial record that have been transcribed previously and that are relevant to a determination of the 27 issues presented by the petition. 1 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 2 || Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 3 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 4 || answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 5 2254 Cases. If respondent files such a motion, it is due sixty (60) days from the date this order is 6 || entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an 7 opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 8 and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days 9 || of receipt of any opposition. 10 4. Petitioner is reminded that all communications with the Court must be served on 11 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 12 || the Court informed of any change of address and must comply with the Court’s orders in a timely 5 13 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 14 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,

(Sth Cir. 3 15 1997) (Rule 41(b) applicable in habeas cases). a 16 IT IS SO ORDERED. 2 17 |) Dated: April 22, 2022

19 JAMES TO 20 United Stgfes District Judge 21 22 23 24 25 26 27 28