Nguyen v. Neuschmid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 TIEN NGUYEN, Case No. 20-CV-00681-LHK 13 Petitioner, ORDER TO SHOW CAUSE 14 v. 15 R. NEUSHMID, 16 Respondent. 17 18 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 19 U.S.C. § 2254. Dkt. No. 1. Petitioner has paid the filing fee for this action. See Dkt. No. 7. 20 For the reasons that follow, the Court orders respondent to show cause why the petition 21 should not be granted. 22 DISCUSSION 23 A. Standard of Review 24 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 27 Hodges, 423 U.S. 19, 21 (1975). 1 A district court shall “award the writ or issue an order directing the respondent to show 2 cause why the writ should not be granted, unless it appears from the application that the applicant 3 or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 4 only where the allegations in the petition are vague or conclusory, palpably incredible, or patently 5 frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting 6 Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). B. Petitioner’s Claims 7 In the habeas petition, petitioner stated the following two claims: 8 (1) his right against self-incrimination, under the Fifth Amendment, was violated when 9 detectives induced him to waive his right to an attorney during an interrogation, see Dkt. No. 1 at 10 6 & Ex. B at 24-37; and 11 (2) his right to jury findings of guilt beyond a reasonable doubt on all elements of second- 12 degree murder, under the Fifth, Sixth, and Fourteenth Amendments, was violated when the trial 13 court failed to instruct the jury on self-defense, see Dkt. No. 1 at 6 & Ex. B at 38-51. 14 Liberally construed, petitioner has stated cognizable claims for relief. The Court orders 15 respondent to show cause why the petition should not be granted as to these claims. 16 CONCLUSION 17 1. The Clerk shall serve by mail a copy of this order and the petition and all 18 attachments thereto (docket no. 1) upon the respondent and the respondent’s attorney, the Attorney 19 General of the State of California. The Clerk shall also serve a copy of this order on petitioner. 20 2. Respondent shall file with the Court and serve on petitioner, within sixty days of 21 the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing 22 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 23 Respondent shall file with the answer and serve on petitioner a copy of all portions of the 24 underlying state criminal record that have been transcribed previously and that are relevant to a 25 determination of the issues presented by the petition. If petitioner wishes to respond to the 26 answer, he shall do so by filing a traverse with the Court and serving it on respondent within 27 1 twenty-eight days of the date the answer is filed. 2 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 3 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 4 2254 Cases within sixty days of the date this order is filed. If respondent files such a motion, 5 petitioner shall file with the Court and serve on respondent an opposition or statement of non- 6 opposition within twenty-eight days of the date the motion is filed, and respondent shall file with 7 the Court and serve on petitioner a reply within fourteen days of the date any opposition is filed. 8 4. It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that all 9 communications with the Court must be served on respondent by mailing a true copy of the 10 || document to respondent’s counsel. Petitioner must keep the Court and all parties informed of any 11 change of address by filing a separate paper captioned “‘Notice of Change of Address.” He must 12 || comply with the Court’s orders in a timely fashion. Failure to do so will result in the dismissal of 5 13 this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 14 IT IS SO ORDERED. 15 16 || DATED: April 2, 2020 acy He eh LUCY H. KO 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 Case No. 20-CV-00681-LHK