Delongis v. Ollison Doc.

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Case 3:06-cv-04236-PJH Document 7 Filed 02/21/2007 Page 1 of 3

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3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
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7 MICHAEL DELONGIS,
8 Petitioner, No. C 06-4236 PJH
9 v. ORDER TO SHOW CAUSE;
ORDER ADMINISTRATIVELY
10 DERRICK L. OLLISON, Warden REOPENING CASE
Ironwood State Prison,
United States District Court

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Respondents.
For the Northern District of California

12 _______________________________/
13 On August 14, 2006, the court issued a stay order in response to petitioner’s request
14 for stay of the instant petition, pending exhaustion of several of the claims raised in the
15 petition. The court’s order also administratively closed the case, and ordered petitioner to
16 notify the court within 30 days of the completion of state court review of petitioner’s claims.
17 On February 5, 2007, petitioner notified the court that the state court has completed
18 review of petitioner’s previously unexhausted claims and issued a one-line denial of
19 petitioner’s state habeas petition. Accordingly, the court hereby lifts the stay previously
20 entered in this case, administratively re-opens the matter, and further instructs the parties
21 as follows.
22 BACKGROUND
23 A Sonoma County jury convicted petitioner of second degree murder and spousal
24 battery. He was sentenced to a fifteen year to life term for the second degree murder
25 count, and an eight year term for the remaining count. Petitioner unsuccessfully appealed
26 his conviction to the California Court of Appeal, and the California Supreme Court denied
27 review. Following a stay of these proceedings, the California Supreme Court denied
28 petitioner’s state habeas petition on January 24, 2007.

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 Case 3:06-cv-04236-PJH Document 7 Filed 02/21/2007 Page 2 of 3

1 DISCUSSION
2 A. Standard of Review
3 This court may entertain a petition for a writ of habeas corpus “in behalf of a person
4 in custody pursuant to the judgment of a State court only on the ground that he is in
5 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
6 2254(a).
7 It shall “award the writ or issue an order directing the respondent to show cause why
8 the writ should not be granted, unless it appears from the application that the applicant or
9 person detained is not entitled thereto.” Id. at § 2243.
10 B. Legal Claims
United States District Court

11 As grounds for federal habeas relief, petitioner asserts: (1) that his Fifth, Sixth,
For the Northern District of California

12 Eighth, and Fourteenth Amendment rights were violated when the trial court failed to
13 instruct the jury that it could consider the issue of petitioner’s intoxication in determining
14 evidence of malice; (2) that his Fifth, Sixth, and Fourteenth Amendment rights were violated
15 when the trial court failed to instruct the jury that it could consider evidence of petitioner’s
16 mental state in relation to the second-degree murder charge; and (3) that his Fifth, Sixth,
17 and Fourteenth Amendment rights were violated when appellate counsel was ineffective in
18 failing to raise issue (2) on appeal.
19 These claims are sufficient to require a response.
20 CONCLUSION
21 For the foregoing reasons and for good cause shown,
22 1. The court hereby lifts the previous stay entered in this case on August 14,
23 2006, and orders that the case be administratively re-opened.
24 2. The clerk shall serve by regular mail a copy of this order and the petition on
25 respondent and respondent's attorney, the Attorney General of the State of California. The
26 clerk shall also serve a copy of this order on petitioner and petitioner’s counsel.
27 3. Respondent shall file with the court and serve on petitioner, within sixty days
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1 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
2 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be
3 granted. Respondent shall file with the answer and serve on petitioner a copy of all
4 portions of the state trial record that have been transcribed previously and that are relevant
5 to a determination of the issues presented by the petition. Respondent shall also include
6 all briefs and any record filed before the California Supreme Court in connection with
7 petitioner’s state habeas petition, which was denied on January 24, 2007.
8 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
9 the court and serving it on respondent within thirty days of his receipt of the answer.
10 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an
United States District Court

11 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing
For the Northern District of California

12 Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court
13 and serve on respondent an opposition or statement of non-opposition within thirty days of
14 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply
15 within fifteen days of receipt of any opposition.
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17 IT IS SO ORDERED.
18 Dated: February 21, 2007
______________________________
19 PHYLLIS J. HAMILTON
United States District Judge
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