Jenkins v. Adams

Filing 39

ORDER TO SHOW CAUSE: Respondent to file responsive pleading by 1/19/2010; Traverse to be filed within thirty days thereafter; Signed by Judge Marilyn Hall Patel on 12/17/2009. (awb, COURT STAFF) (Filed on 12/18/2009) *copy of this order and the petition sent to respondent and to CA State Attorney General's Office by certified mail*

1 2 3 4 5 6 7 8 9 10 KEELON JENKINS, Plaintiff, v. MICHAEL S. EVANS, Defendant. /

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
No. C 05-02003 MHP MEMORANDUM & ORDER Re: Order to Show Cause

United States District Court

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For the Northern District of California

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Keelon Jenkins ("petitioner"), currently incarcerated at Folsom State Prison, filed a petition for writ of habeas corpus with this court pursuant to 28 U.S.C. section 2254. At petitioner's request, the petition was stayed so that petitioner could completely exhaust his claims in state court. After doing so, petitioner filed a First Amended Petition and then a Second Amended Petition. The court now considers petitioner's Second Amended Petition pursuant to 28 U.S.C. section 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

BACKGROUND According to the Second Amended Petition, petitioner was convicted of first degree murder and assault with a deadly weapon in the Superior Court for the County of Alameda. On June 22, 2001, he was sentenced to life in prison without the possibility of parole. Petitioner appealed his conviction to the California Court of Appeals and the conviction was affirmed. He then petitioned the California Supreme Court for discretionary review which was denied on March 3, 2004.

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On February 2, 2005, petitioner filed a petition for writ of habeas corpus in the California Appellate Court claiming that he was denied effective assistance of counsel. The petition was denied. Petitioner then filed a similar petition in the California Supreme Court. This petition was also denied. Petitioner filed his Second Amended Petition in this court on December 14, 2009.

DISCUSSION This court may entertain a petition for writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Rule 4, Rules Governing section 2254 Cases. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The Second Amended Petition alleges the following claims: First, petitioner contends that the trial court violated his Fifth, Sixth and Fourteenth Amendment rights to due process and effective assistance of counsel when it refused to hold a hearing on his motion to substitute counsel. Liberally construed, this claim is cognizable in a federal habeas action. Second, petitioner argues that he was denied effective assistance of counsel when his trial attorney openly attacked and undermined his credibility. Liberally construed, this claim is cognizable in a federal habeas action. Finally, petitioner contends that he was denied a fair jury trial, due process and equal protection of the law when the prosecution was permitted to peremptorily challenge seven of the ten African-Americans being evaluated as prospective jurors. Liberally construed, this claim is cognizable in a federal habeas action. 2

United States District Court

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For the Northern District of California

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1 2 3 4 5 6 7 8 9 10 CONCLUSION All three claims alleged by petitioner in his Second Amended Petition are cognizable in a federal habeas action. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney. The clerk shall also serve a copy of this order on petitioner. Respondent must file and serve upon petitioner by January 19, 2010, an answer conforming in all respects to Rule 5 of the Rules governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer copies of the juror questionnaires used in selecting the jury for petitioner's second trial, a complete transcript of the jury voire dire at the second trial and a transcript of all hearings held regarding the motions by petitioner to substitute counsel. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent within thirty (30) days of the date petitioner is served with a copy of respondent's answer.

United States District Court

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For the Northern District of California

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IT IS SO ORDERED.

Dated: 12/17/2009

MARILYN HALL PATEL United States District Court Judge Northern District of California

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