Pelfrey et al v. Lewis
Filing
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ORDER FOR RESPONDENT TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 8/8/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 8/8/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MICHAEL and JACQUELINE
BONNIFIELD and ANGELA PELFREY,
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No. C 12-3857 PJH (PR)
Petitioners and Next Friends of
ORDER FOR RESPONDENT
TO SHOW CAUSE
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ANTHONY PELFREY,
Real Party in Interest,
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For the Northern District of California
United States District Court
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vs.
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GREG LEWIS, Acting Warden, Pelican
Bay State Prison,
Respondent.
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Petitioners are friends (the Bonnifields) and the sister (Angela Pelfrey) of a California
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prisoner currently incarcerated at Pelican Bay State Prison. They contend that petitioner’s
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mental state is such that he cannot petition for habeas relief on his own behalf, so they
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have done so as his next friends. They have paid the filing fee.
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Petitioner was convicted in Mendocino County, which is in this district, so venue is
proper here. See 28 U.S.C. § 2241(d).
BACKGROUND
After a bench trial, petitioner was found guilty of attempted murder and two counts of
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assault with a deadly weapon with infliction of great bodily injury. He was sentenced to
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thirteen years in prison. The California Court of Appeal affirmed with a minor modification
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and the Supreme Court of California denied review. Petitioner also filed state habeas
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petitions in the court of appeal and the supreme court contemporaneously with his appeal.
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In those petitions he presented the issues raised here. Both were denied.
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DISCUSSION
A.
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Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody
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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.
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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
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application for a federal writ of habeas corpus filed by a prisoner who is in state custody
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
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For the Northern District of California
United States District Court
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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the
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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”
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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.
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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject
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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,
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1108 (9th Cir. 1996) (Schroeder, J., concurring).
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B.
Legal Claims
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As grounds for federal habeas relief, petitioner asserts that his attorney was
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ineffective in that he: (1) waived a jury trial; (2) failed to present a mental defense to the
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“intent to kill” element of attempted murder; (3) was unaware of a California case that made
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the insanity defense unavailable under the facts as counsel presented them; (4) failed to
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investigate sufficiently to discover evidence of causes of petitioner’s mental difficulties other
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than his long-term drug use; and (5) failed to obtain and present expert testimony about
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these other causes of petitioner’s mental difficulties. These claims are sufficient to require
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a response.
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CONCLUSION
1. The clerk shall serve by regular mail a copy of this order and the petition and all
attachments thereto on respondent and respondent's attorney, the Attorney General of the
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State of California. The clerk also shall serve a copy of this order on petitioner.
2. Respondent shall file with the court and serve on petitioner, within sixty days of
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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be
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granted. Respondent shall file with the answer and serve on petitioner a copy of all
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portions of the state trial record that have been transcribed previously and that are relevant
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to a determination of the issues presented by the petition.
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the court and serving it on respondent within thirty days of his receipt of the answer.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
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For the Northern District of California
United States District Court
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing
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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the
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date this order is entered. If a motion is filed, petitioner shall file with the court and serve
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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of
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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply
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within fourteen days of receipt of any opposition.
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4. Petitioner is reminded that all communications with the court must be served on
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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner
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must keep the court informed of any change of address and must comply with the court's
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orders in a timely fashion. Failure to do so may result in the dismissal of this action for
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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.
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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
Dated: August 8, 2012.
PHYLLIS J. HAMILTON
United States District Judge
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