(HC) Escalon v. K.V.S.P. Warden ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD VICTOR ESCALON, Case No. 1:19-cv-00722-LJO-SAB-HC 12 Petitioner, ORDER TO RESPOND TO FIRST AMENDED PETITION AND 13 v. MEMORANDUM OF POINTS AND AUTHORITIES (ECF Nos. 11, 17) 14 K.V.S.P. WARDEN, 15 Respondent. ORDER SETTING BRIEFING SCHEDULE 16 ORDER TO ELECTRONICALLY FILE TRANSCRIPTS AND OTHER NECESSARY 17 DOCUMENTS 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. 21 On May 23, 2019, Petitioner filed a federal petition for writ of habeas corpus challenging 22 his 2014 Fresno County conviction for first-degree murder on the grounds that: (1) the trial court 23 prejudicially erred by failing to sua sponte instruct on the lesser-included offense of attempted 24 murder; and (2) the appellate court erred in affirming the judgment with respect to the lesser- 25 included offense instruction. (ECF No. 1). On May 28, 2019, the Court ordered Respondent to 26 file a response to the petition. (ECF No. 6). 27 Despite no order to show cause having been issued, on July 15, 2019, Petitioner filed a 1 Show Cause.” (ECF No. 11). Therein, Petitioner included the following additional claims for 2 habeas relief: (1) erroneous admission of prejudicial photographs; (2) prosecutorial misconduct; 3 (3) erroneous admission of prejudicial predisposition evidence; (4) ineffective assistance of 4 counsel; and (5) cumulative effects of errors. (ECF No. 11 at 2–3).1 5 On September 10, 2019, the Court discharged the order to respond to the original petition 6 and granted Petitioner leave to file a first amended petition that includes all his claims for habeas 7 relief. (ECF No. 16). On September 23, 2019, Petitioner filed the First Amended Petition 8 (“FAP”). (ECF No. 17). 9 Rule 2(c) of the Rules Governing Section 2254 Cases states that a petition must, inter 10 alia: “(1) specify all the grounds for relief available to the petitioner; [and] (2) state the facts 11 supporting each ground.” In the FAP, Petitioner raises the following claims for relief: (1) the trial 12 court prejudicially erred by failing to sua sponte instruct on the lesser-included offense of 13 attempted murder; (2) erroneous admission of prejudicial photographs; (3) prosecutorial 14 misconduct; and (4) erroneous admission of prejudicial predisposition evidence. (ECF No. 17 at 15 4–5). Petitioner provides facts supporting his claim that the trial court erred by failing to sua 16 sponte instruct on attempted murder, but the FAP does not state facts supporting the remaining 17 claims for relief. 18 However, the “Memorandum of Points and Authorities in Support of Answer to Order to 19 Show Cause” provides allegations and arguments in support of the three remaining claims for 20 relief specified in the FAP. Accordingly, the Court will construe the “Memorandum of Points 21 and Authorities in Support of Answer to Order to Show Cause” as a Memorandum of Points and 22 Authorities in support of the FAP. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document 23 filed pro se is ‘to be liberally construed.’”); Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 24 2005) (“[T]he district court must construe pro se habeas filings liberally.”). 25 Having conducted a preliminary review of the FAP and the Memorandum of Points and 26 Authorities, it is not clear whether Petitioner is entitled to relief. 28 U.S.C. § 2243. Accordingly, 27 pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court HEREBY ORDERS: 1 1. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 2 FILE a RESPONSE to the First Amended Petition (ECF No. 17) and the 3 Memorandum of Points and Authorities (ECF No. 11). See Rule 4, Rules 4 Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-74 (9th 5 Cir. 1985) (court has discretion to fix time for filing a response). A Response can 6 be made by filing one of the following: 7 A. AN ANSWER addressing the merits of the First Amended 8 Petition. Any argument by Respondent that Petitioner has procedurally 9 defaulted a claim SHALL BE MADE in the ANSWER, but must also 10 address the merits of the claim asserted. 11 B. A MOTION TO DISMISS the First Amended Petition. 12 2. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 13 FILE any and all transcripts or other documents necessary for the resolution of the 14 issues presented in the First Amended Petition. See Rule 5(c), Rules Governing 15 Section 2254 Cases. The transcripts or other documents shall only be filed 16 electronically and, to the extent practicable, provided in Optical Character 17 Recognition (“OCR”) format. Respondent shall not file a hard copy of the 18 transcripts or other documents unless so ordered by this Court. 19 3. If Respondent files an Answer to the First Amended Petition, Petitioner MAY 20 FILE a Traverse within THIRTY (30) days of the date Respondent’s Answer is 21 filed with the Court. If no Traverse is filed, the First Amended Petition and 22 Answer are deemed submitted at the expiration of the thirty days. 23 4. If Respondent files a Motion to Dismiss, Petitioner SHALL FILE an Opposition 24 or Statement of Non-Opposition within TWENTY-ONE (21) days of the date 25 Respondent’s Motion is filed with the Court. Any Reply to an Opposition to the 26 Motion to Dismiss SHALL be filed within SEVEN (7) days after the Opposition 27 is served. The Motion to Dismiss will be deemed submitted TWENTY-EIGHT 1 comes first. See Local Rule 230(1). 2 All motions shall be submitted on the record and briefs filed without oral argument unless 3 | otherwise ordered by the Court. Local Rule 230(1). Extensions of time will only be granted upon 4 | a showing of good cause. All provisions of Local Rule 110 are applicable to this order. 5 6 IT IS SO ORDERED. OF. nf ee 7 | Dated: _October 9, 2019 _ ef UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28