Koon v. Barnes

Filing 8

ORDER DISCHARGING 5 Order to Show Cause; ORDER GRANTING 6 Petitioner's Motion to Amend the Petition to Withdraw Unexhausted Claim Concerning Ineffective Assistance of Counsel; and ORDER DIRECTING RESPONDENT to File a Response to Petition, signed by Magistrate Judge Sandra M. Snyder on 7/26/2011. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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UTAH KOON,

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Petitioner,

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v.
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R. E. BARNES, Warden,
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Respondent.
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1:11-cv—00131-SMS-HC
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 5)
ORDER GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION TO
WITHDRAW UNEXHAUSTED CLAIM
CONCERNING INEFFECTIVE ASSISTANCE
OF COUNSEL (DOC. 6)

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ORDER REQUIRING RESPONDENT TO
FILE A RESPONSE TO PETITIONER’S
CLAIMS CONCERNING INSTRUCTIONAL
ERROR AND THE INSUFFICIENCY OF
THE EVIDENCE TO SUPPORT HIS
CONVICTION

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ORDER SETTING A BRIEFING SCHEDULE

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ORDER DIRECTING THE CLERK TO
SERVE DOCUMENTS ON THE ATTORNEY
GENERAL

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

The matter has been referred to the

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Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules
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302 and 303.

Pending before the Court is Petitioner’s response

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to the order to show cause that issued on February 11, 2011.
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I.

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On February 11, 2011, the Court directed Petitioner to show

Discharge of the Order to Show Cause

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cause why the petition should not be dismissed as a mixed

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petition containing both exhausted claims and claims as to which

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Petitioner’s state court remedies had not been exhausted.

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Petitioner responded to the order to show cause on February
25, 2011.

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Accordingly, the order to show cause will be discharged.

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II.

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Amendment of Petition to Withdraw Unexhausted Claim

Petitioner alleges three claims in the petition:

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1) appellate counsel was ineffective for failing to raise on

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appeal the insufficiency of the evidence to support Petitioner’s

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convictions; 2) an erroneous jury instruction concerning motive,

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which permitted consideration of unemployment and poverty as

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evidence tending to show guilt, violated his rights to due

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process of law and a fair trial in violation of the Fifth, Sixth,

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and Fourteenth Amendments; and 3) the evidence was insufficient

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to support his convictions, and thus Petitioner suffered a

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violation of due process of law.

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(Pet. 4-5.)

In his response to the order to show cause, Petitioner

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stated that his claim concerning the allegedly ineffective

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assistance of counsel was unexhausted and moved to amend the

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petition to withdraw the claim so that the other claims, which

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Petitioner stated were properly exhausted, could be properly

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reviewed in this proceeding.

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Petitioner’s motion to amend the petition to withdraw the

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claim concerning the allegedly ineffective assistance of counsel

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will be granted, and the action will proceed on Petitioner’s
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remaining claims.

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III.

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With respect to Petitioner’s claims concerning the

Response to the Petition

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insufficiency of the evidence and instructional error, the Court

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has conducted a preliminary review of the petition.

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clear from the face of the petition whether Petitioner is

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entitled to relief.

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It is not

28 U.S.C. § 2243.

Accordingly, Respondent will be directed to respond to these
claims.

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IV.

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Accordingly, it is ORDERED that

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1)

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Disposition

The order to show cause that issued on February 11,

2011, is DISCHARGED; and
2) Petitioner’s motion to amend the petition to withdraw the

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claim concerning the allegedly ineffective assistance of counsel

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is GRANTED, and the action will PROCEED on Petitioner’s remaining

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claims; and

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3) With respect to Petitioner’s claims concerning the

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insufficiency of the evidence and instructional error, pursuant

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to Rule 4 of the Rules Governing Section 2254 Cases and Rule 16

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of the Federal Rules of Civil Procedure,1 the Court hereby

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ORDERS:

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The Federal Rules of Civil Procedure “apply to proceedings for habeas
corpus ... to the extent that the practice in those proceedings (A) is not
specified in a federal statute, the Rules Governing Section 2254 Cases, or the
Rules Governing Section 2255 Cases; and (B) has previously conformed to the
practice in civil actions.” Fed. R. Civ. P. 81(a)(4). Rule 12 also provides
“[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases.

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Respondent SHALL FILE a RESPONSE to the petition2

a)

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within SIXTY (60) days of the date of service of this order.

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Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen,

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770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has discretion to

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fix time for filing a response).

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filing one of the following:

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1)

See

A response can be made by

An ANSWER addressing the merits of the

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petition.

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any and all transcripts or other documents necessary

Respondent SHALL INCLUDE with the ANSWER

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for the resolution of the issues presented in the

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petition.

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Cases.

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Petitioner has been procedurally defaulted SHALL BE

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MADE in the ANSWER, but must also address the merits of

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the claim asserted.

See Rule 5, Rules Governing Section 2254

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Any argument by Respondent that a claim of

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A MOTION TO DISMISS the petition.

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motion to dismiss SHALL INCLUDE copies of all

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Petitioner’s state court filings and dispositive

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rulings.

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Cases.3

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b)

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See Rule 5, Rules Governing Section 2254

If Respondent files an answer to the petition,

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Respondent is advised that a scanned copy of the petition is available
in the Court’s electronic case filing system (CM/ECF).
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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the
Court’s determination that summary dismissal is inappropriate, the “judge must
order the respondent to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Rule 4, Rules
Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and
5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate
the need for filing an answer on the substantive merits of the petition and
that the respondent may file a motion to dismiss for failure to exhaust);
White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion
to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding).

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Petitioner MAY FILE a traverse within THIRTY (30) days of the

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date Respondent’s answer is filed with the Court.

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is filed, the petition and answer are deemed submitted at the

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expiration of the thirty (30) days.

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c.

If no traverse

If Respondent files a motion to dismiss, Petitioner

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SHALL FILE an opposition or statement of non-opposition within

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TWENTY-ONE (21) days of the date Respondent’s motion is filed

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with the Court.

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is deemed submitted at the expiration of the thirty (30) days.

If no opposition is filed, the motion to dismiss

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Any reply to an opposition to the motion to dismiss SHALL BE

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FILED within SEVEN (7) days after the opposition is served.

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d.

Unless already submitted, both Respondent and

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Petitioner SHALL COMPLETE and RETURN to the Court within THIRTY

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(30) days a consent/decline form indicating whether the party

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consents or declines to consent to the jurisdiction of the United

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States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

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4.

The Clerk of the Court is DIRECTED to SERVE a copy of

this order on the Attorney General or his representative.

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All motions shall be submitted on the record and briefs

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filed without oral argument unless otherwise ordered by the

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Court.

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only be granted upon a showing of good cause.

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Local Rule 110 are applicable to this order.

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IT IS SO ORDERED.

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Dated:
icido3

Local Rule 230(l).

July 26, 2011

Requests for extensions of time will
All provisions of

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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