1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 RENE A. FONSECA, Case No. 23-cv-01719-WHO (PR)

Petitioner, 5 ORDER TO SHOW CAUSE v. 6

7 RON BROOMFIELD, Respondent. 8

9 INTRODUCTION 10 Petitioner Rene A. Fonseca seeks federal habeas relief from his California state 11 convictions for sex offenses. The petition for habeas relief is now before the Court for 12 review pursuant to

and Rule 4 of the Rules Governing Section 2254 13 Cases. The petition states cognizable claims. Accordingly, on or before December 18, 14 2023, respondent shall file an answer or a dispositive motion in response to the habeas 15 petition. 16 The Clerk shall modify the docket to reflect that Ron Broomfield, the warden of the 17 prison in which Fonseca is housed, is the sole respondent. Broomfield is the sole proper 18 respondent in this action, as he is the custodian having day-to-day control over petitioner, 19 the only person who can produce “the body” of the petitioner. Brittingham v. United 20 States,

(9th Cir. 1992) (quoting Guerra v. Meese,

, 416 21 (D.C. Cir. 1986)). 22 The filing fee has been paid. (Dkt. No. 1.) 23 BACKGROUND 24 In 2019 Fonseca was convicted by a San Francisco County Superior Court jury of 25 rape by intoxication, oral copulation by intoxication, sexual penetration by a foreign object 26 by force, and misdemeanor sexual battery. (Pet., Dkt. No. 1 at 2.); People v. Fonseca, No. 27 1 years was imposed. (Id.) His attempts to overturn his convictions in state court were 2 unsuccessful. (Id. at 3-4.) 3 DISCUSSION 4 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 5 in custody pursuant to the judgment of a State court only on the ground that he is in 6 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 7 § 2254(a). A district court considering an application for a writ of habeas corpus shall 8 “award the writ or issue an order directing the respondent to show cause why the writ 9 should not be granted, unless it appears from the application that the applicant or person 10 detained is not entitled thereto.”

. Summary dismissal is appropriate 11 only where the allegations in the petition are vague or conclusory, palpably incredible, or 12 patently frivolous or false. See Hendricks v. Vasquez,

(9th Cir. 1990). 13 As grounds for federal habeas relief, Fonseca alleges that the trial court violated his 14 federal constitutional rights by (1) refusing his request to instruct the jury on the complete 15 defense of mistaken belief of consent; (2) failing to instruct the jury on the legal definition 16 of consent; (3) admitting the testimony of a rape trauma expert; (4) denying his motion for 17 a new trial based on newly discovered exculpatory evidence; and (5) excusing a juror 18 during deliberations. (Pet., Dkt. No. 1 at 6-7.) When liberally construed, these claims are 19 cognizable and shall proceed. 20 CONCLUSION 21 1. The Clerk shall serve electronically a copy of this order upon the respondent and 22 the respondent’s attorney, the Attorney General of the State of California, at the following 23 email addresses: [email protected] and [email protected]. The 24 petition and the exhibits thereto are available via the Electronic Case Filing System for the 25 Northern District of California. The Clerk shall serve by mail a copy of this order on 26 petitioner. 27 2. On or before December 18, 2023, respondent shall file with the Court and serve 1 || Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 2 || based on petitioner’s cognizable claims. Respondent shall file with the answer and serve 3 || on petitioner a copy of all portions of the state trial record that previously have been 4 || transcribed and that are relevant to a determination of the issues presented by the petition. 5 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 6 || with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 7 || answer is filed. 8 4. In lieu of an answer, respondent may file, on or before December 18, 2023, a 9 || motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 10 || Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 11 || petitioner shall file with the Court and serve on respondent an opposition or statement of 2 non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 5 13 || file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 14 || opposition is filed. 15 5. Petitioner is reminded that all communications with the Court must be served on a 16 || respondent by mailing a true copy of the document to respondent’s counsel.

17 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 18 || Court and respondent informed of any change of address and must comply with the 19 || Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 20 || action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 21 7. Upon a showing of good cause, requests for a reasonable extension of time will 22 || be granted provided they are filed on or before the deadline they seek to extend. 23 8. The filing fee has been paid. (Dkt. No. 1.) 24 IT IS SO ORDERED. 25 || Dated: August 30, 2023 , ( . MQe 26 LIAM H. ORRICK 27 United States District Judge 28