Diaz v. Covello
- Jon Tigar
- 4:21-cv-00137
- U.S. District Court · Northern District of California
- 3
Diaz v. Covello: Judge Van Keulen ordered a response to Surial Diaz’s federal petition, finding stated claims legally cognizable without deciding their merits.
Surial Diaz’s federal challenge proceeds to the response stage; Patrick Covello must respond or file a procedural motion, and the order also requires Diaz to follow specified case-management obligations.
What happened
In Diaz v. Covello, Surial Diaz asked a federal court to review his state conviction and sentence under a federal law allowing challenges to unconstitutional state custody.
Diaz raised claims involving the right to confront a witness, exclusion of evidence, the evidence supporting separate offenses, sentence increases based on facts found by a judge, and denial of a request to add a jury-selection transcript. The court found that, read broadly, these claims could support relief and ordered a response.
Judge Susan Van Keulen ordered Patrick Covello to file an answer within 60 days or file a motion to dismiss on procedural grounds. The order did not decide whether Diaz should win, and it warned that the case could be dismissed if Diaz failed to prosecute it.
The detailed version
- Diaz v. Covello · No. 4:21-cv-00137
- Jon Tigar
- Mar. 10, 2021
Background
Surial Diaz filed a petition under 28 U.S.C. § 2254 seeking federal relief from his state conviction and sentence. Under the governing standard, a federal court may grant relief only if the person is in state custody in violation of the United States Constitution, federal laws, or treaties. At this stage, summary dismissal is appropriate only when the petition’s allegations are vague or conclusory, plainly incredible, or clearly frivolous or false.
Claims
Diaz asserted that:
- His Sixth Amendment right to confront a witness was violated.
- His due-process rights were violated when evidence that the complaining witness had previously made a false molestation accusation was excluded.
- His due-process rights were violated because the finding that the offenses occurred on separate occasions was not supported by sufficient evidence.
- His Sixth and Fourteenth Amendment rights were violated because the minimum and maximum terms for subordinate counts were increased based on facts found by a judge rather than a jury.
- His Fourteenth Amendment rights were violated when the state court of appeal denied his motion to add a reporter’s transcript of jury selection to the record.
Court’s action
The court held that, liberally construed, Diaz had stated claims that could support federal relief. It ordered the respondent to show cause why the petition should not be granted as to those claims. The order was not a merits decision on whether any constitutional violation occurred.
The clerk was directed to serve the order on the respondent and the respondent’s attorney, the California Attorney General’s Office. Within 60 days, the respondent was required to file an answer complying with Rule 5 of the Rules Governing Section 2254 Cases and relevant portions of the transcribed state-court record. The respondent could instead file a motion to dismiss on procedural grounds. Diaz would have 28 days to respond to an answer or such a motion, subject to the additional schedule stated in the order.
The order also placed responsibility on Diaz to prosecute the case, keep the court and parties informed of any address change, and comply with court orders. It stated that failure to do so could lead to dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b).
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.