Fuller v. Matteson ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARRY DARNELL FULLER, Case No. 20-cv-01878-JD 8 Petitioner, ORDER LIFTING STAY AND FOR 9 v. RESPONDENT TO SHOW CAUSE 10 GISELLE MATTESON, Respondent. 11 12 13 Larry Fuller, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. The action was stayed so petitioner could exhaust an additional claim. 15 Petitioner has filed an amended petition and indicates that all claims are now exhausted. 16 BACKGROUND 17 Petitioner was found guilty after a jury trial of one count of murder with the special 18 circumstance that the victim was killed to prevent his testimony. People v. Fuller, No. A149884, 19 2018 WL 492705, at *1 (Cal. Ct. App. Oct. 11, 2018). Petitioner was sentenced to a prison term 20 of life without the possibility of parole. Id. at 3. The California Court of Appeal affirmed the 21 conviction. Id. at 1. The California Supreme Court denied review. Amended Petition at 3. A 22 habeas petition to the California Supreme Court was recently denied. Id. 23 DISCUSSION 24 STANDARD OF REVIEW 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 2 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 3 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 4 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 5 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 6 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 7 688, 689 (1st Cir. 1970)). 8 LEGAL CLAIMS 9 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erred in 10 admitting evidence of a prior crime to show motive; and (2) trial counsel and appellate counsel 11 were ineffective for failing to challenge the evidence that was obtained from his cellphone in 12 violation of the Fourth Amendment.1 Liberally construed, these claims are sufficient to require a 13 response. 14 CONCLUSION 15 1. The stay in this case (Docket No. 6) is LIFTED and the case is REOPENED. The 16 clerk shall serve by electronic mail a copy of this order on the Attorney General of the State of 17 California at SFAWTParalegals@doj.ca.gov. The clerk also shall serve a copy of this order on 18 petitioner by regular mail. Respondent can view the amended petition on the electronic docket 19 (Docket No. 7). 20 2. Respondent shall file with the Court and serve on petitioner, within eighty-four (84) 21 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 22 Governing 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 state 24 trial record that have been transcribed previously and that are relevant to a determination of the 25 issues presented by the petition. 26 27 1 Sixth Amendment claims based on incompetent representation by counsel with respect to Fourth 1 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 2 || Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 3 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 4 || answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 5 2254 Cases. If respondent files such a motion, it is due eighty-four (84) days from the date this 6 || order is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent 7 an opposition or statement of non-opposition within twenty-eight (28) days of receipt of the 8 || motion, and respondent shall file with the Court and serve on petitioner a reply within fourteen 9 (14) days of receipt of any opposition. 10 4. Petitioner is reminded that all communications with the Court must be served on 11 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 12 || the Court informed of any change of address and must comply with the Court’s orders in a timely 5 13 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 14 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 3 15 1997) (Rule 41(b) applicable in habeas cases). a 16 IT IS SO ORDERED. 3 17 Dated: February 5, 2021 18 19 JAMES ATO 20 United St@tes District Judge 21 22 23 24 25 26 27 28