Kemper v. Yates

Filing 27

ORDER LIFTING STAY; REOPENING CASE; ORDER TO SHOW CAUSE. Signed by Judge Jeffrey S. White on 4/29/11. (jjoS, COURT STAFF) (Filed on 4/29/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WINSTON KEMPER,

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Petitioner,
vs.

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JAMES YATES, Warden,

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Respondent.

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No. C 07-4666 JSW (PR)
ORDER LIFTING STAY; REOPENING
CASE; TO SHOW CAUSE

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Petitioner, a prisoner of the State of California, currently incarcerated in Coalinga,

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California, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the

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constitutionality of his state conviction. Petitioner subsequently filed an amended petition

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on February 27, 2008 containing ten claims, including four unexhausted claims. In lieu of

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dismissing the petition as a mixed petition containing both exhausted and unexhausted

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claims, the four unexhausted claims were stricken and this case was stayed in order to

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allow Petitioner time to exhaust them. Petitioner was instructed that after exhausting his

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claims, he should file a motion to amend in order to add the newly exhausted claims.

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Petitioner filed a motion to amend stating that he had filed a habeas petition in the

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California Supreme Court, which had denied his claims, and that he would like to add his

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newly-exhausted claims. His motion did not indicate what claims he had exhausted,

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however, and as a result, he was ordered to file a motion to lift the stay in which he

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identified what claims he had exhausted and would like to have reinstated.

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Instead of filing such a motion, Petitioner simply filed a copy of the habeas petition

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that he filed in the California Supreme Court, which set forth three claims. The first of

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these claims is unintelligible, the second claim challenges the validity of identification

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procedure, and the third claims that jury instructions regarding evidence of other crimes

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was unconstitutional. These latter two claims were among the four unexhausted claims

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from the amended petition and they will be reinstated, the stay will be lifted, and

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respondent will be ordered to show cause why the amended petition should be granted

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based on the following eight exhausted claims therein (six that were exhausted prior to the

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stay, and two that were recently exhausted):

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(1) ineffective assistance of trial counsel;

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(2) prosecutorial misconduct in the filing of false information;

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(3) an unduly suggestive identification procedure was used

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(4) the trial court’s admission of other crimes in violation of due process;

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(5) the trial court’s allowing a bailiff to stand in the witness stand during

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Petitioner’s testimony violated due process;

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(6) the instruction on other crimes evidence violated due process;

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(7) vindictive prosecution; and

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(8) prosecutorial misconduct by making statements that conflicted with the

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evidence presented.

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For the foregoing reasons and for good cause shown,

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1. The stay is LIFTED and the Clerk shall administratively REOPEN the file.

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2. Respondent shall file with the Court and serve on Petitioner, within ninety (60)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted based upon the eight claims from the amended petition set forth above.

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Respondent shall file with the answer and serve on Petitioner a copy of all portions of the

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state trial record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the amended petition. If Petitioner wishes to

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respond to the answer, he shall do so by filing a traverse with the Court and serving it on

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Respondent within thirty (30) days of the date the answer is filed.

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3. Respondent may, within ninety (90) days of the date this order is filed, file a

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motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent

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files such a motion, Petitioner shall file with the Court and serve on Respondent an

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opposition or statement of non-opposition within thirty (30) days of the date the motion is

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filed, and Respondent shall file with the Court and serve on Petitioner a reply within

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fifteen (15) days of the date any opposition is filed.
4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: April 29, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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WINSTON KEMPER,
Plaintiff,

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Case Number: CV07-04666 JSW
CERTIFICATE OF SERVICE

v.
JAMES YATES et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 29, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Winston H. Kemper
B64476
P.O. Box 8500
Coalinga, CA 93210

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Dated: April 29, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk