Pimentel v. Mendocino County Probation ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MICHAEL PATRICK PIMENTEL, 7 Case No. 24-cv-04757 EJD (PR) Petitioner, 8 ORDER TO SHOW CAUSE v. 9 10 MENDOCINO COUNTY, 11 Respondent. 12 13 14 Petitioner, who is on probation, filed a pro se petition for a writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254, challenging his conviction for driving under the influence 16 (DUI).1 Dkt. No. 1. Petitioner paid the filing fee. Dkt. No. 2. 17 BACKGROUND 18 Petitioner was found guilty by a jury in Mendocino County Superior Court of DUI 19 (Veh. Code § 23152, subd. (a)), and driving with a blood alcohol content of 0.08 percent or 20 more (Veh. Code § 23152, subd. (b)). Dkt. No. 1 at 1. On August 11, 2021, Petitioner was 21 sentenced to three years of probation. Id. 22 Petitioner appealed his conviction to the appellate division of the Superior Court of 23 Mendocino County, which affirmed the conviction. Dkt. No. 1 at 2. Petitioner then sought 24 a petition for transfer of his case to the Court of Appeal, which denied the petition on 25 November 14, 2023. Id. at 2-3. Under McMonagle v. Meyer, 802 F.3d 1093, 1097 (9th 26 Cir. 2015), this concluded direct review of Petitioner’s misdemeanor conviction. 27 1 Petitioner filed the instant federal habeas action on August 7, 2024, seeking reversal 2 of the judgment. Dkt. No. 1. 3 DISCUSSION 4 A. Standard of Review 5 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 6 in custody pursuant to the judgment of a State court only on the ground that he is in 7 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 8 § 2254(a). 9 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.” Id. § 2243. 12 B. Legal Claims 13 Petitioner claims that his trial attorney provided ineffective assistance of counsel 14 under Strickland v. Washington, 466 U.S. 668 (1984), when counsel failed to object to 15 prosecution’s false statements during closing argument and then failed to challenge the 16 statements in her own closing arguments. Dkt. No. 1 at 5. Liberally construed, this claim 17 is cognizable under § 2254 and merits an answer from Respondent. See, e.g., United 18 States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009). 19 CONCLUSION 20 For the foregoing reasons and for good cause shown, 21 1. The Clerk shall serve electronically a copy of this order upon the Respondent 22 and the Respondent’s attorney, the Attorney General of the State of California, at the 23 following email addresses: SFAWTParalegals@doj.ca.gov and 24 docketingsfawt@doj.ca.gov. The petition and any exhibits thereto are available via the 25 Electronic Case Filing System for the Northern District of California. The Clerk also shall 26 serve a copy of this order on Petitioner. 27 2. Respondent shall file with the court and serve on Petitioner, within ninety 1 || the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 2 || should not be issued. Respondent shall file with the answer and serve on Petitioner a copy 3 || ofall portions of the state trial record that have been transcribed previously and that are 4 || relevant to a determination of the issues presented by the petition. 5 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 6 || the Court and serving it on Respondent within thirty (30) days of his receipt of the 7 || answer. 8 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 9 || answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 10 || Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court 11 || and serve on Respondent an opposition or statement of non-opposition within twenty- eight (28) days of receipt of the motion, and Respondent shall file with the court and serve 13 || on Petitioner a reply within fourteen (14) days of receipt of any opposition. 14 4. It is Petitioner’s responsibility to prosecute this case. Petitioner 1s reminded 3 15 || that all communications with the Court must be served on Respondent by mailing a true a 16 || copy of the document to Respondent’s counsel. Petitioner must keep the Court and all 17 || parties informed of any change of address by filing a separate paper captioned “Notice of 18 Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure 19 || to do so may result in the dismissal of this action for failure to prosecute pursuant to 20 || Federal Rule of Civil Procedure 41(b). 21 5. Upon a showing of good cause, requests for a reasonable extension of time 22 || will be granted provided they are filed on or before the deadline they seek to extend. 23 IT IS SO ORDERED. ( ( ( ) ) 24 || Dated: November 19, 2024 EDWARD J. DAVILA 25 United States District Judge 26 27 28