Taylor v. Jaime ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NAMON TAYLOR, Case No. 19-cv-05664-HSG 8 Petitioner, AMENDED ORDER TO SHOW CAUSE 9 v. 10 GEORGE JAIME, 11 Respondent. 12 13 Petitioner, a state prisoner currently incarcerated at California City Correctional Facility, 14 filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action 15 had been stayed pursuant to petitioner’s request so that petitioner could exhaust state court 16 remedies for two additional claims that he had recently discovered. Dkt. No. 17. On February 25, 17 2020, the Court lifted the stay, reopened this action, screened the amended petition filed on 18 February 20, 2020, and ordered respondent to show cause why relief should not be granted based 19 on five claims for federal habeas relief raised in the amended petition. Dkt. No. 20. Petitioner has 20 informed the Court that his amended petition raised a sixth claim, which was incorporated by 21 reference. Dkt. No. 21. Accordingly, the Court issues the following amended order to show 22 cause. 23 AMENDED ORDER TO SHOW CAUSE 24 The Court reviews below petitioner’s amended petition (Dkt. No. 19) pursuant to 28 25 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District 26 Courts. 27 BACKGROUND 1 County jury of committing two robberies (Cal. Penal Code § 211) and possessing a firearm as a 2 felon (Cal. Penal Code § 12022.53). Dkt. No. 19 (“Am. Pet.”) at 1-2. In addition, a prior prison 3 term enhancement was pled and proven. Am. Pet. at 2. Petitioner was sentenced to twenty-five 4 years in state prison. Am. Pet. at 1. 5 On direct appeal, the state appellate court remanded for the trial court to consider whether 6 to impose the firearm-use enhancement, while affirming the judgment in all other respects. Am. 7 Pet. at 3. Thereafter, the California Supreme Court denied review. Id. Petitioner’s state court 8 habeas petitions were denied. Id. at 3-4. 9 DISCUSSION 10 A. Standard of Review 11 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 12 custody pursuant to the judgment of a state court only on the ground that he is in custody in 13 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 14 Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing 15 the respondent to show cause why the writ should not be granted, unless it appears from the 16 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 17 B. Petitioner’s Claims 18 Petitioner claims that he is entitled to federal habeas relief because (1) trial counsel was 19 ineffective for failing to conduct a reasonable pre-trial investigation, for failing to challenge the 20 warrantless search of petitioner’s car trunk, for failing to file a motion to suppress the evidence 21 found pursuant to the warrantless search, for failing to investigate whether the San Leandro Police 22 Department had a standing policy regarding impounding and inventorying vehicles, and for failing 23 to object when the prosecution elicited and allowed testimony regarding a series of robberies that 24 had been excluded; (2) the evidence used to convict petitioner was seized as the product of an 25 unconstitutional search and seizure in violation of the Fourth and Fourteenth Amendment; 26 (3) there was insufficient evidence to support the conviction for possession of a firearm; (4) the 27 prosecutor committed misconduct when the prosecutor elicited and allowed testimony regarding a 1 on direct appeal the ineffective assistance of trial counsel claims and the prosecutorial misconduct 2 claim and (6) the trial court erred in allowing the use of an uncharged prior offense to prove 3 identity in the charged offense. Liberally construed, these claims are sufficient to require a 4 response. 5 CONCLUSION 6 For the foregoing reasons, the Court orders as follows. 7 1. Respondent shall file with the Court and serve on petitioner, within ninety-one (91) 8 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 9 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 10 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 11 petitioner a copy of all portions of the state trial record that have been transcribed previously and 12 that are relevant to a determination of the issues presented by the petition. 13 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 14 Court and serving it on respondent within thirty-five (35) days of the date the answer is filed. 15 2. Respondent may file, within ninety-one (91) days, a motion to dismiss on 16 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 17 the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 18 with the Court and serve on respondent an opposition or statement of non-opposition within 19 twenty-eight (28) days of the date the motion is filed, and respondent shall file with the Court and 20 serve on petitioner a reply within fourteen (14) days of the date any opposition is filed. 21 3. Petitioner is reminded that all communications with the Court must be served on 22 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 23 the Court informed of any change of address and must comply with the Court’s orders in a timely 24 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 25 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 26 1997) (Rule 41(b) applicable in habeas cases). 27 // 1 4. Upon a showing of good cause, requests for a reasonable extension of time will be 2 || granted provided they are filed on or before the deadline they seek to extend. 3 IT IS SO ORDERED. 4 || Dated: 4/29/2020 5 . ° S. GILLIAM, JR. ih 6 United States District Judge 7 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28