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

Case 4:07-cv-04734-SBA

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Filed 09/08/2008

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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 GREGORY A. OTT Deputy Attorney General 5 PAMELA K. CRITCHFIELD Deputy Attorney General 6 State Bar No. 168024 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664 7 Telephone: (415) 703-5952 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10 11 12 13 BARTH DENNIS CAPELA, 14 Petitioner, 15 v. 16 BOB HOREL, Warden, 17 Respondent. 18 19 Respondent hereby provides this answer to the order to show cause why the petition for I. 21 22 23 24 Petitioner is lawfully in the custody of Bob Horel, Warden of California State Prison, INTRODUCTION ANSWER TO ORDER TO SHOW CAUSE C 07-04734 SBA (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

20 writ of habeas corpus should not be granted.

25 Solano, as a result of a judgment of conviction in Santa Clara County Superior Court Case No. 26 FF302986 for attempted robbery and two counts of misdemeanor assault. Petitioner was sentenced 27 to 19 years in state prison. 28
Answer to Order to Show Cause - C 07-04734 SBA (PR)

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II. GENERAL AND SPECIFIC DENIALS

3 4 Respondent denies that the state court's ruling was based on an unreasonable

5 determination of the facts or was contrary to or involved an unreasonable application of clearly 6 established United States Supreme Court law. Respondent specifically denies that (1) the knife 7 evidence was improperly admitted; (2) the evidence of petitioner's lack of motive to steal was 8 improperly excluded; (3) instructional error occurred; (4) cumulative error occurred; (5) 9 prosecutorial misconduct occurred; and (6) petitioner's due process rights were violated by the 10 denial of access to legal materials and appointment of advisory counsel. 11 12 PROCEDURAL DEFAULTS 13 14 15 filed. 16 17 LODGED EXHIBITS 18 19 Respondent has lodged concurrently with this answer the following exhibits: (1) State IV. Claim 6 does not state a federal claim. Petitioner's federal habeas petition was timely III.

20 Court Clerk's Transcript (2 volumes); (2) Augmentation to the Clerk's Transcript on Appeal (1 21 volume); (3) State Court Reporter's Transcript (13 volumes); (4) State Court Reporter's Transcript 22 Augmentation of the Record (4 volumes); (5) State Court Reporter's Transcript March 29, 2004 23 session (2 volumes); (6) Appellant's Opening Brief (H028273); (7) Appellant's Supplemental 24 Opening Brief (H028273); (8) Respondent's Brief (H028273); (9) Appellant's Reply Brief 25 (H028273); (10) Unpublished opinion by the California Court of Appeal (H028273); (11) 26 Appellant's Petition for Review (S143236); (12) Register of Actions­California Courts­order 27 denying petition for review (S143236); (13) Petition for Writ of Habeas Corpus filed in California 28 Supreme Court (S151537); and (14) Register of Actions­California Court­order denying habeas
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1 petition (S151537). Respondent hereby incorporates by reference the accompanying memorandum 2 of points and authorities. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Answer to Order to Show Cause - C 07-04734 SBA (PR)

Dated: September 8, 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 GREGORY A. OTT Deputy Attorney General /s/ Pamela K. Critchfield PAMELA K. CRITCHFIELD Deputy Attorney General Attorneys for Respondent PKC:jw
20140985.wpd

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