FILED

] Sep 12 2023 2 SER eS nioeaee □□ □□

NORTHERN DISTRICT OF CALIFORNIA

3 SAN FRANCISCO 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARTIN ANTHONY URENA, Case No. 23-cv-03917-TSH 8 Petitioner, 9 v. ORDER TO SHOW CAUSE 10 WARDEN JEFF LYNCH, 11 Respondent. 12 13 Petitioner, an inmate at California State Prison — Sacramento, filed this pro se action 14 || seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court 8 15 || conviction. His petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 16 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner has i 17 || paid the filing fee. Dkt. No. 4. 18 BACKGROUND 19 According to the petition, on or about July 23, 2018, Petitioner was sentenced to a term of 20 || sixty-two years and eight months to life in state prison, after being convicted by a Santa Clara 21 County jury of second degree murder and being an ex-felon in possession of a weapon. Dkt. No. 1 22 || at 1. Petitioner unsuccessfully appealed his conviction to both the state appellate court and the 23 || California Supreme Court. Dkt. No. 1 at 2-3. Petitioner denies having filed any state habeas 24 || petition. Dkt. No. | at 3. 25 DISCUSSION 26 || A. Standard of Review 27 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 28 || custody pursuant to the judgment of a state court only on the ground that he is in custody 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). A district court shall “award the writ or issue an order directing 3 the respondent to show cause why the writ should not be granted, unless it appears from the 4 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 5 B. Petition 6 The petition states the following cognizable claims for federal habeas relief: instructional 7 error for instructing with CALCRIM No. 3471; instructional error for instructing with CALCRIM 8 No. 3471 without informing he jury what it means to start a fight under California law; and 9 ineffective assistance of trial counsel for failing to object to CALCRIM No. 3471 as unsupported 10 by substantial evidence and failing to request that the instruction include the legal definition of 11 “starts a fight.” See generally Dkt. No. 1. Liberally construed, these claims appear cognizable 12 under § 2254 and merits an answer from Respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 13 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally). 14 CONCLUSION 15 For the foregoing reasons, the Court orders as follows. 16 1. The Clerk shall serve electronically a copy of this order upon the Respondent and 17 the Respondent’s attorney, the Attorney General of the State of California, at the following email 18 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via 19 the Electronic Case Filing System for the Northern District of California. The Clerk shall serve by 20 mail a copy of this order on Petitioner. 21 2. Respondent shall file with the Court and serve on Petitioner, within ninety-one 22 (91) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 23 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 24 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 25 Petitioner a copy of all portions of the state trial record that have been transcribed previously and 26 that are relevant to a determination of the issues presented by the petition. 27 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the ] 3. Respondent may file, within ninety-one (91) days, a motion to dismiss on 2 || procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 3 || the Rules Governing Section 2254 Cases. If Respondent files such a motion, petitioner shall file 4 || with the Court and serve on Respondent an opposition or statement of non-opposition within 5 || twenty-eight (28) days of the date the motion is filed, and Respondent shall file with the Court 6 || and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 7 4. Petitioner is reminded that all communications with the Court must be served on 8 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must 9 || keep the Court informed of any change of address and must comply with the Court’s orders in a 10 || timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 11 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 12 || (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). E 13 5. Upon a showing of good cause, requests for a reasonable extension of time will be 14 || granted provided they are filed on or before the deadline they seek to extend. 3 15 IT IS SO ORDERED.

17 || Dated: 9/12/2023 . 18 TAN - Je

THOMAS S. HIXSON

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28