Filed: Sep. 01, 2016
Latest Update: Sep. 01, 2016
Summary: ORDER OF SERVICE NATHANAEL M. COUSINS , Magistrate Judge . Petitioner Kevin Duarte, a state prisoner incarcerated at California State Prison in Wasco, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. I. BACKGROUND Petitioner was convicted by a jury of murder, commission of murder during an attempted robbery, discharge of a firearm, and shooting into an occupied vehicle in the Alameda County Superior Court of the State of California. On February 10, 2012, he w
Summary: ORDER OF SERVICE NATHANAEL M. COUSINS , Magistrate Judge . Petitioner Kevin Duarte, a state prisoner incarcerated at California State Prison in Wasco, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. I. BACKGROUND Petitioner was convicted by a jury of murder, commission of murder during an attempted robbery, discharge of a firearm, and shooting into an occupied vehicle in the Alameda County Superior Court of the State of California. On February 10, 2012, he wa..
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ORDER OF SERVICE
NATHANAEL M. COUSINS, Magistrate Judge.
Petitioner Kevin Duarte, a state prisoner incarcerated at California State Prison in Wasco, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I. BACKGROUND
Petitioner was convicted by a jury of murder, commission of murder during an attempted robbery, discharge of a firearm, and shooting into an occupied vehicle in the Alameda County Superior Court of the State of California. On February 10, 2012, he was sentenced to life without possibility of parole plus a consecutive 25 years to life in state prison. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which on March 25, 2016, denied review of a petition allegedly raising the same claims raised here.
II. DISCUSSION
A. Legal Standard
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
B. Petitioner's Legal Claims
Petitioner seeks federal habeas corpus relief by raising the following claims (1) a violation of his fifth and fourteenth amendment rights; (2) newly discovered evidence; (3) ineffective assistance of counsel; and (4) violation of his eight amendment rights. Liberally construed, the claims appear colorable under 28 U.S.C. § 2254 and merit an answer from respondent.
III. CONCLUSION
For the foregoing reasons and for good cause shown:
1. The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto upon respondent. The clerk shall also serve a copy of this order on petitioner.
2. Respondent shall file with the court and serve on petitioner, within 60 days of the date of this order, an answer showing why a writ of habeas corpus should not be issued (or — an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued). Respondent shall file with the answer and serve on petitioner a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition.
3. If the petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer.
4. Respondent shall file a consent or declination to magistrate judge jurisdiction within 14 days.
IT IS SO ORDERED.
