Free Response to Order to Show Cause - District Court of California - California

Case 3:07-cv-04981-JSW

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Filed 03/19/2008

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 JULIET B. HALEY Deputy Attorney General 6 State Bar No. 162823 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664 7 Telephone: (415) 703-5960 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10 11 12 13 BRIAN ALAN MISQUEZ, 14 Petitioner, 15 v. 16 KEN CLARK, Warden, 17 Respondent. 18 19 Respondent hereby provides this Answer to the Order to Show Cause why the petition RESPONDENT'S ANSWER TO THE COURT'S ORDER TO SHOW CAUSE C 07-4981 JSW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

20 should not be granted. 21 22 23 I. CUSTODY Petitioner Brian Alan Misquezis lawfully in the custody of respondent within the meaning

24 of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3) and 2254(d), pursuant to a valid 25 judgment of the Contra Costa County Superior Court a Contra Costa County jury having found 26 petitioner guilty of the second degree murder, 27 On October 29, 2004, petitioner was sentenced to 15 years to life in state prison. CT 283-

28 284; RT 542-545. Petitioner appealed. His convictions were affirmed by the California Court of
Respondent's Answer To The Court's Order To Show Cause - C 07-4981 JSW (PR)

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Case 3:07-cv-04981-JSW

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1 Appeal on July 7, 2006.

Petitioner's petition for review was also summarily denied by the

2 California Supreme Court on October 11, 2006. 3 4 5 6 On September 26, 2007, petitioner filed the instant federal habeas petition in this Court. II. PROCEDURAL ISSUES Petitioner has exhausted his state remedies as to the claims herein presented and the

7 petition is timely. 28 U.S.C. § 2244(d). 8 9 10 III. DENIAL OF CLAIMS Respondent denies that petitioner suffered any deprivation of constitutional rights

11 supporting habeas corpus relief. Specifically, respondent denies the trial court's failure to remove 12 a member of the jury denied petitioner his right to due process. 13 Respondent also enies that this claim entitles petitioner to relief because he has failed to

14 establish that the state court's denial of these claims was either an unreasonable application of 15 clearly established Federal law as determined by the United States Supreme Court or resulted in a 16 decision based on an unreasonable determination of the facts in light of the evidence presented to 17 the state courts. Respondent incorporates by reference the accompanying memorandum of points 18 and authorities in support of this denial. 19 20 21 IV. TRANSCRIPTS AND RECORDS Copies of the transcript of petitioner's trial together with copies of the briefs filed on

22 direct appeal have been lodged with this Court. These documents constitute all relevant documents 23 and hearing transcripts necessary for this Court's decision. So far as respondent is aware, all 24 relevant state reported proceedings have been transcribed. Rule 5, Rules Governing Section 2254 25 Case. 26 27 28
Respondent's Answer To The Court's Order To Show Cause - C 07-4981 JSW (PR)

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Case 3:07-cv-04981-JSW

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40230114.wpd

CONCLUSION Accordingly, respondent respectfully requests that the petition be denied. Dated: March 19, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General /s/ Juliet B. Haley JULIET B. HALEY Deputy Attorney General Attorneys for Respondent

SF2008400413

Respondent's Answer To The Court's Order To Show Cause - C 07-4981 JSW (PR)

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