Dunn v. Covello ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEYLEN M. DUNN, Case No. 21-cv-09036-RMI 8 Petitioner, ORDER TO SHOW CAUSE v. 9 10 PATRICK COVELLO, Respondent. 11 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 14 to 28 U.S.C. § 2254. The amended petition was dismissed with leave to amend and Petitioner filed 15 a second amended petition. (dkt. 17) 16 BACKGROUND 17 Petitioner was convicted after a jury trial of second-degree murder with a knife and second 18 degree robbery. People v. Dunn, A155981, 2021 WL 973386, at *1 (Cal. Ct. App. Mar. 16, 2021). 19 The California Court of Appeal affirmed the judgment. Id. at *1. The California Supreme Court 20 denied review. (dkt. 1 at 3.) 21 DISCUSSION 22 1. Standard of Review 23 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 24 custody pursuant to the judgment of a State court only on the ground that he is in custody in 25 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 26 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 27 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 1 must “specify all the grounds for relief available to the petitioner . . . [and] state the facts 2 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases; 28 U.S.C. foll. § 2254. 3 “[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a real 4 possibility of constitutional error.” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 5 431 F.2d 688, 689 (1st Cir. 1970) (internal quotation marks omitted)). 6 2. Legal Claims 7 As grounds for federal habeas relief, Petitioner alleges that: (1)/(2) the trial court erred by 8 failing to provide a jury instruction for the lesser included offense of involuntary manslaughter; 9 (3) he was prevented from presenting a defense of involuntary manslaughter; (4) the trial court 10 failed to provide a pinpoint jury instruction and, (5)/(6) the trial court erred in admitting certain 11 evidence or prior crimes. Liberally construed, these claims are sufficient to require a response. 12 CONCLUSION 13 The Clerk of Court shall serve, by electronic mail, a copy of this order and a Magistrate 14 Judge Jurisdiction consent form on the Attorney General of the State of California at 15 SFAWTParalegals@doj.ca.gov. The Clerk also shall serve a copy of this order on Petitioner by 16 regular mail. Respondent can view the Petition on the electronic docket (dkt. 17). 17 Respondent shall file with the court and serve on Petitioner, within fifty-six (56) days of 18 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 19 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 20 Respondent shall file, with the Answer, and serve on Petitioner, a copy of all portions of the state 21 trial record that have been transcribed previously and that are relevant to a determination of the 22 issues presented by the Petition. 23 If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the 24 court and serving it on Respondent within twenty-eight (28) days of his receipt of the Answer. 25 Respondent may file a motion to dismiss on procedural grounds in lieu of an Answer, as 26 set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 27 If Respondent files such a motion, it is due fifty-six (56) days from the date that this order is 1 opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 2 || and Respondent shall file with the court, and serve on Petitioner, a reply within fourteen (14) days 3 || of receipt of any opposition. 4 Petitioner is reminded that all communications with the court must be served on 5 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must keep 6 || the court informed of any change of address and must comply with the court’s orders in a timely 7 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 8 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 9 1997) (Rule 41(b) applicable in habeas cases) 10 IT IS SO ORDERED. 11 Dated: November 2, 2022 12 13 ROBERT M. ILLMAN 14 United States Magistrate Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28