Smith v. Cueva ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 DONTE MARQUEE SMITH, Case No. 23-cv-03833-NC 11 Plaintiff, ORDER OF SERVICE 12 v. Re: ECF 1 13 DANIEL CUEVA, 14 Defendant. 15 16 Petitioner Donte Marquee Smith, a state prisoner incarcerated at the California 17 Medical Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 18 2254. Petitioner has consented to magistrate judge jurisdiction. ECF 3. 19 I. BACKGROUND 20 Petitioner was convicted by a jury of (1) murder, California Penal Code § 187; (2) 21 attempted murder, California Penal Code §§ 187 and 644; (3) shooting at an occupied 22 motor vehicle, California Penal Code § 246 in the Superior Court of California for Contra 23 Costa County. ECF 1 (“Pet.”) at 2-3.1 Plaintiff was also subsequently found guilty of 24 possession of a firearm with a prior juvenile delinquency adjudication, California Penal 25 Code § 29820. Id. at 3. On January 30, 2015, he was sentenced to “life imprisonment 26 without the possibility of parole plus 25 years to life imprisonment state prison.” Id. 27 1 || Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the 2 Supreme Court of California, which on December 14, 2022, denied review of the petition. 3 || Id. at 4. 4 || If. DISCUSSION 5 A. Legal Standard 6 This court may entertain a petition for writ of habeas corpus “in behalf of a person 7 || in custody pursuant to the judgment of a State court only on the ground that he is in g || custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 9 || § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 10 || why the writ should not be granted, unless it appears from the application that the applicant 11 || or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is 12 || appropriate only where the allegations in the petition are vague or conclusory, palpably E 13 incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 14 || (th Cir. 1990). 3 15 B. _ Petitioner’s Legal Claims 5 16 Petitioner seeks federal habeas corpus relief by raising the following claims: 5 17 1. Claim One: Denial of Petitioner’s Due Process rights under the Fifth, 18 Sixth and Fourteenth Amendments based on trial counsel’s alleged 2 19 ineffectiveness for: (1) “failing to call a cellular phone tower expert,” (2) 0 “failing to call a ballistics expert,” (3) “failing to unseal S.S.’s telephone records,” and (4) “failing to present alibi evidence.” Pet. at 15, 37, 43, 9 46, 48, 51; and 34 2. Claim Two: Denial of Petitioner’s Due Process rights under the Fifth, Sixth, and Fourteenth Amendments because “he is legally, factually, and 95 actually innocent.” Jd. at 16, 53 26 Liberally construed, the claims appear colorable under 28 U.S.C. § 2254 and merit 27 || an answer from respondent. 28 1 III. CONCLUSION 2 For the foregoing reasons and for good cause shown: 3 1. The Clerk shall serve electronically a copy of this order and a Magistrate 4 Judge jurisdiction consent form upon Respondent and Respondent’s 5 attorney, the Attorney General of the State of California, at the following 6 email addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The Petition and the exhibits thereto are 7 available via the Electronic Case Filing System for the Northern District 8 of California. The Clerk shall serve by mail a copy of this order on 9 Petitioner. 10 2. On or before February 5, 2024, Respondent shall file with the Court and 11 serve on Petitioner an Answer conforming in all respects to Rule 5 of the 12 Rules Governing Section 2254 Cases, showing cause why a writ of 13 habeas corpus should not be granted based on Petitioner’s cognizable 14 claims. Respondent shall file with the Answer and serve on Petitioner a 15 copy of all portions of the state trial record that previously have been 16 transcribed and that are relevant to a determination of the issues presented 17 by the Petition. 18 3. If the petitioner wishes to respond to the answer, he shall do so by filing a 19 traverse with the court and serving it on respondent within 30 days of his 20 receipt of the answer. 21 4. In lieu of an Answer, Respondent may file, on or before February 5, 22 2024, a motion to dismiss on procedural grounds, as set forth in the 23 Advisory Committee Notes to Rule 4 of the Rules Governing Section 24 2254 Cases. If Respondent files such a motion, Petitioner shall file with 25 the Court and serve on Respondent an Opposition or statement of non- 26 opposition within thirty (30) days of the date the motion is filed, and 27 Respondent shall file with the Court and serve on Petitioner a Reply 1 5. Respondent shall file a consent or declination to magistrate judge 2 jurisdiction within 14 days. 3 6. Upon a showing of good cause, requests for a reasonable extension of 4 time will be granted provided they are filed on or before the deadline they 5 seek to extend. 6 IT IS SO ORDERED. 7 8 Dated: December 7, 2023 hbo ——> _ NATHANAEL M. COUSINS 9 United States Magistrate Judge 10 11 12 13 (14 15 16 © 17 1g 19 20 21 22 23 24 25 26 27 28