Murray v. Lozano ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICKEY PAUL MURRAY, Case No. 20-cv-00471-HSG 8 Petitioner, ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN 9 v. FORMA PAUPERIS 10 J. LOZANO, Re: Dkt. No. 3 11 Respondent. 12 13 Petitioner, a state prisoner incarcerated at California Medical Facility, has filed a pro se 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction from 15 Monterey County Superior Court. Dkt. No. 1 at 1. His request to proceed in forma pauperis is 16 GRANTED. Dkt. No. 3 17 BACKGROUND 18 In 2017, petitioner was convicted by a Monterey County jury of possession of a firearm by 19 a felon (Cal. Pen. Code § 29800(a)(1)), possession of ammunition by a felon (Cal. Pen. Code 20 § 30305 (a)(1)), possession of cocaine for sale (Cal. Health & Saf. Code § 11351), possession of 21 heroin for sale (Cal. Health & Saf. Code § 11351), possession of methamphetamine for sale (Cal. 22 Health & Saf. Code § 11378), three counts of possession of a controlled substance while armed 23 with a firearm (Cal. Health & Saf. Code § 11370.1(a)); assault with a semiautomatic firearm (Cal. 24 Pen. Code § 245 (b)), shooting at an inhabited dwelling (Cal. Pen. Code § 246), shooting at an 25 unoccupied vehicle (Cal. Pen. Code § 247(b)), and discharging a firearm with gross negligence 26 (Cal. Pen. Code § 246.3(a)). The jury also found true allegations that defendant was armed with a 27 firearm (Cal. Pen. Code § 12022(c)) in the commission of the three counts involving possession 1 the commission of the assault, shooting, and firearm discharge counts. The trial court sentenced 2 defendant to 15 years and 8 months in prison. People v. Murray, No. H046866, 2019 WL 3 5387923, at *1 (Cal. Ct. App. Oct. 22, 2019); Pet. at 1-2. Petitioner appealed and the appellate 4 court reversed the judgment and remanded the matter to the trial court for the limited purpose of 5 correcting a clerical error regarding custody credits, and to allow the trial court to consider 6 whether to exercise its newly enacted discretion to strike the section 12022.5 enhancement under 7 section 1385. The trial court corrected the clerical error regarding custody credits and, on March 8 21, 2019, the trial court declined to strike the enhancement and reinstated the sentence. Murray, 9 2019 WL 5387923, at *1. On April 29, 2019, petitioner again appealed the conviction and 10 sentence, and the state appellate court denied both the appeal and the separate habeas petition on 11 October 22, 2019. 2019 WL 5387923. Petitioner reports that, in 2018, the California Supreme 12 Court denied his petition for review. He also reports that he currently has a petition for a writ of 13 habeas corpus pending in the California Supreme Court. Dkt. No. 1 at 3-4. 14 DISCUSSION 15 A. Standard of Review 16 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 17 custody pursuant to the judgment of a State court only on the ground that he is in custody in 18 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 19 district court considering an application for a writ of habeas corpus shall “award the writ or issue 20 an order directing the respondent to show cause why the writ should not be granted, unless it 21 appears from the application that the applicant or person detained is not entitled thereto.” 28 22 U.S.C. § 2243. 23 B. Claims 24 Petitioner alleges the following grounds for federal habeas relief: (1) numerous instances 25 of ineffective assistance of trial counsel, (2) instructional error in giving an instruction regarding 26 mutual combat; and (3) violation of the Double Jeopardy clause when the trial court failed to stay 27 two of the possession for sale convictions pursuant to Cal. Penal Code § 654. Liberally construed, 1 the claims appear cognizable under § 2254 and merit an answer from respondent.1 See Zichko v. 2 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs 3 of habeas corpus liberally). 4 CONCLUSION 5 For the foregoing reasons and for good cause shown, 6 1. Petitioner’s request to proceed in forma pauperis is GRANTED. Dkt. No. 3. 7 2. The Clerk shall serve electronically a copy of this order upon the respondent and 8 the respondent’s attorney, the Attorney General of the State of California, at the following email 9 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via 10 the Electronic Case Filing System for the Northern District of California. The Clerk shall serve by 11 mail a copy of this order on petitioner. 12 3. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 13 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 14 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 15 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 16 petitioner a copy of all portions of the state trial record that have been transcribed previously and 17 that are relevant to a determination of the issues presented by the petition. 18 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 19 Court and serving it on respondent within thirty (30) days of the date the answer is filed. 20 4. Respondent may file, within sixty (60) days, a motion to dismiss on procedural 21 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 22 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 23 Court and serve on respondent an opposition or statement of non-opposition within twenty-eight 24 (28) days of the date the motion is filed, and respondent shall file with the Court and serve on 25 petitioner a reply within fourteen (14) days of the date any opposition is filed. 26 27 1 Given petitioner’s statement that he has a writ for a petition of habeas corpus still pending in the 1 5. Petitioner is reminded that all communications with the Court must be served on 2 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 3 || the Court informed of any change of address and must comply with the Court’s orders in a timely 4 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 6 1997) (Rule 41(b) applicable in habeas cases). 7 6. Upon a showing of good cause, requests for a reasonable extension of time will be 8 || granted provided they are filed on or before the deadline they seek to extend. 9 This order terminates Dkt. No. 3. 10 IT IS SO ORDERED. 11 Dated: 4/29/2020 a 12 b . HAYWOOD S. GILLIAM, JR. 13 United States District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28