1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 RYAN SCOTT WARNER, Case No. 22-cv-02916-JD

10 Petitioner,

ORDER FOR RESPONDENT TO

11 v. SHOW CAUSE

12 ROB ST. ANDRE, Respondent. 13

14 15 Ryan Warner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 16 28 U.S.C. § 2254. The mixed petition was dismissed with leave to amend, and petitioner has filed 17 a response. 18 BACKGROUND 19 Petitioner was found guilty of murder with the special circumstance of torture and assault 20 resulting in the death of a child under eight years old. People v. Warner, No. A152049, 2021 WL 21 194226, at *1 (Cal. Ct. App. Jan. 20, 2021). Petitioner was sentenced to life without the 22 possibility of parole. Id. at 21. The California Court of Appeal reversed the special circumstance 23 finding but affirmed the judgment in all other respects. Id. at 1. The California Supreme Court 24 denied review. Petition at 3. 25 DISCUSSION 26 STANDARD OF REVIEW 27 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 1 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 2 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 3 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 4 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 5 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 6 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 7 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 8 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 9 688, 689 (1st Cir. 1970)). 10 LEGAL CLAIMS 11 The original petition presented numerous claims, but it appeared that only certain claims 12 were exhausted.1 A more thorough review of petitioner’s filings reflect that he states the 13 following claims were presented to the California Supreme Court and appear exhausted: (1) there 14 was insufficient evidence that petitioner acted with the intent to torture to support his conviction 15 for first degree torture murder; (2) trial counsel was ineffective for failing to object to the 16 prosecution’s misstatement of the reasonable doubt standard in rebuttal argument; (3) an erroneous 17 pinpoint jury instruction regarding aiding and abetting allowed jurors to convict petitioner based 18 on proof insufficient to meet guilt beyond a reasonable doubt; (4) the pinpoint instruction allowed 19 the jury to convict him based on his codefendant’s intent; (5) trial counsel was ineffective for 20 failing to object to the pinpoint jury instruction and to the trial court’s response to the jury’s first 21 question; (6) a jury instruction erroneously allowed the jury to convict him based on the invalid 22 legal theory that he failed to perform a legal duty; (7) the trial court violated his rights by failing to 23 instruct the jury on involuntary manslaughter; and (8) cumulative error. 24 Petitioner was informed that he could either demonstrate that the unexhausted claims had 25 been exhausted, continue only with the exhausted claims and dismiss the unexhausted claims or 26 file a motion for a stay. Petitioner has filed a response (Dkt. No. 10) and indicates he wishes to 27 1 continue with the exhausted claims. The unexhausted claims are dismissed from the petition and 2 liberally construed, the above eight claims appear exhausted and are sufficient to require a 3 response. 4 CONCLUSION 5 1. The Clerk shall serve by electronic mail a copy of this order on the Attorney 6 General of the State of California at SFAWTParalegals@doj.ca.gov. The Clerk also shall serve 7 a copy of this order on petitioner by regular mail. Respondent can view the petition on the 8 electronic docket (Dkt. No. 1). 9 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 10 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 11 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 12 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 13 trial record that have been transcribed previously and that are relevant to a determination of the 14 issues presented by the petition. 15 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 16 Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 17 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 18 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 19 2254 Cases. If respondent files such a motion, it is due sixty (60) days from the date this order is 20 entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an 21 opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 22 and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days 23 of receipt of any opposition. 24 4. Petitioner is reminded that all communications with the Court must be served on 25 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 26 the Court informed of any change of address and must comply with the Court’s orders in a timely 27 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 1 1997) (Rule 41(b) applicable in habeas cases). 2 IT IS SO ORDERED. 3 Dated: July 25, 2022 4 5

JAMES ATO

6 United SfAtes District Judge 4 8 9 10 11 12

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